Volume 102 — Wisconsin Reports

BeNNett, Circuit Judge. John W. Cole died testate February 11, 1894.

<p>Appeal from a judgment of the circuit court for Dodge county: "Wai-iham Papes, Circuit Judge.</p>

Digk, Circuit Judge. Action for personal injuries. The complaint, by appropriate allegations, states that plaintiff was injured without fault on his part, by falling into the manhole of a catch-basin located in one of the streets of the defendant city; that the cover of the manhole was so improperly adjusted that travel over it by persons, either in vehicles or otherwise, was liable to displace it with injurious consequences to such persons; that plaintiff was injured in…

A. OheistiakseN, Judge. The defendant signed a written order for a harvester, containing a warranty of material and workmanship, and providing that, if the machine did not work well, he should .give written notice to the plaintiff, at Chicago, stating wherein it failed, and allow reasonable time to remedy the alleged defect, and that, if the machine could not be made to do the work, it should be returned to the agent and a new machine given in its place, or, in the option of…

<p>Appeal from a judgment of the county court of Waukesha county: M. S. Geiswold, Judge.</p>

<p>(1,2) Bills and notes: Interlineations: Presumptions as to fraud. (3-5) Transactions with person since -deceased: Witnesses: Removal of incompetency: Depositions.</p> <p>1. The mere existence of an interlineation in a note .raises no presumption of a fraudulent or unauthorized alteration. In the absence of some indication other than the interlineation itself, the presumption is that it was made before delivery of the paper.</p> <p>2. Where an interlineation in a note exists, but the instrument appears to have been written all at the same time, by the same hand and with the same ink, the presumptions are against a forgery, and in the absence of clear and satisfactory evidence to the contrary such presumptions should prevail.</p> <p>3. The incompetency of a party under sec. 4070, R. S. 1878, to testify as to personal transactions between himself and one whom he claims to have been the agent of the adverse party, is not removable by the examination of such party otherwise than as a witness at the instance of such adverse party and the introduction of such examination in evidence by such party in his own behalf.</p> <p>4. The inoompetency of a party to testify under sec. 4070, R. S. 1878, is removable only by the conduct of the adverse party in the manner-indicated in suc-h section. The door for such party to testify is closed by the statute against any effort of his to open it. The adverse party must open the door, if opened at all.</p> <p>5. The mere taking of a deposition does not make it evidence for either party. Though it may be offered by either, when offered it is the evidence of the party offering it, regardless of at whose instance it was taken.</p> <p>[Syllabus by Mabsball, J.]</p>

<p> Promissory notes: Suretyship: Pelease by extension: Estoppel: Pelease of co-surety. </p> <p>1. If a note is definitely extended in consideration of prepayment of interest by the principal maker, without the knowledge or consent of a surety, the latter is thereby released.</p> <p>3. A surety on the note of a corporation who, in his capacity as an officer of the corporation, requested and procured an extension of the time for payment, is estopped to assert that he is discharged as surety because of his lack of consent as such to the extension.</p> <p>3. Where one of two sureties on a note is released from liability, because the note has been extended without his consent, his co-surety is thereby, under sec. 4304, Stats. 1898, released from liability for one half the debt. The provisions of that section apply to joint sureties as well as to principal debtors, save in so far as they are limited by the proviso and by the terms of sec. 4305.</p>

<p>Cl) Physicians arid surgeons: Privileged communications. (2) Transactions with person since deceased: “Party.”</p> <p>1. Information acquired by a physician while examining a person, not for the purpose of curing or helping her, but to determine the question of her mental competency with a view to an application for lier release from guardianship, is not “information necessary to enable him to prescribe for such patient as a physician,” within the meaning of sec. 4075, E. S. 1878, and the physician may, therefore, give testimony thereof.</p> <p>2. An officer of a corporation which is a party to an action in which the opposite party claims under a deceased person is not himself a “party” so as to be incompetent, finder sec. 4069, R. S. 1878, to testify in respect to transactions had by him personally with such deceased person.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p>

<p> Evidence: Mental capacity: Opinion of nonexpert: Cross-examination: Appeal. </p> <p>1, The opinion, of a nonexpert witness as to the mental condition of a person cannot properly be received in evidence -until such witness has first qualified himself by stating facts within his personal knowledge and means of personal observation, such as to satisfy the court of his ability to give an intelligent opinion liable to be of some assistance to the jury in coming to a correct conclusion.</p> <p>2. A witness cannot properly be cross-examined as to a mere collateral matter, not affecting his credibility, but tending to disgrace him.</p> <p>3. The findings of the trial court will not be disturbed on appeal unless clearly against the preponderance of the evidence.</p> <p>An extensive note upon the subject of nonexpert opinions as to sanity or insanity is appended to the case of Ryder v. State (100 Ga. 528), in 38, L. R. A. 721.— Rep.</p>

<p>Appeal from a judgment of the circuit court for. Dodge county: James J. Dick, Circuit Judge.</p> <p>Probate of the will was opposed on the ground of lack of testamentary capacity and for undue influence. One of the witnesses to the will was a son and heir of the deceased, to whom no bequest or devise was made therein. He was objected to as not a competent witness. The other subscribing witness, without objection, testified to all the material elements of the execution of the will. The circuit court found existence of testamentary capacity and absence of undue influence, and admitted the will to probate, from which judgment this appeal is brought.</p> <p>They contended, inter alia, that the will was not executed as required by sec. 2282, Stats. 1898, not being attested by two or more competent witnesses. The son was disqualified from testifying to transactions or communications with his father. In re Valentine's Will, 93 Wis. 45; Georice v. Georice, 80 Wis. 516; Will of Silverthorn, 68 Wis. 312; Holcomb v. Holcomb, 95 N. Y. 316; Matter of Bernsee, 141 N. Y. 389.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>The plaintiff, as administrator de lonis non with the will annexed of the estate of Lucinda Cutler, deceased, brings-this action to recover the value of a note of $3,500 and interest, executed by George Hams to said deceased, May 13,. 1889, together with the real-estate mortgage securing the-same. The complaint contains the necessary allegations showing the representative character of the plaintiff, that the note and mortgage are assets of said estate, and that the same have been converted by the defendant to his own use. The answer admits the representative character of the plaintiff, and the execution, of-the note and mortgage, and alleges ownership in himself of said note and mortgage, as collateral security -to a loan of $2,500, made by him March 20, 1890, to one Rambusch, who was then executor of the estate of Lucinda Cutler, and assigned the note and mortgage to the defendant as such executor. There was little, if any, dispute about the facts, and they were substantially as follows:</p> <p>The note and mortgage in question were executed on the 13th day of May, 1889, to the order of Lucinda Cutler, who-was then alive, and were owned by her. On the same day she made her will, by which she gave her husband, John A. Cutler, the use of her household furniture and the interest on $1,500 during his natural life, and also gave other legacies, amounting to $2,000, to her children and grandchildren, and provided for the division of the $1,500 in which her husband had a life interest, among her children, after his death. The will also appointed William T. Rambusch, of Juneau, executor and trustee for the investment of the $1,500. Lucinda Cutler shortly afterwards died, and the. will was probated on the petition of Rambusch, on the 25th of June, 1889, and Rambusch was appointed and qualified as executor. He filed no inventory, and paid no claims against the estate, and rendered no account of his administration. The-estate seems to have consisted ^impty of the $3,500 note and mortgage, and a small amount of household furniture. The defendant, Hcmhins, lived at Watertown, Wisconsin, and Rad previously Rad business transactions with Eambusch in the way of loaning money through him. On the 15th of March, 1890, Eambusch wrote Hawkms, apparently in pursuance of some previous letter or conversation, as follows: “ On Tuesday nest, an order will be made by the county judge in regard to the $2,000 loan, and I will then be ready for it, and will send you the papers. If you can make it $2,500, it will be just as well. The mortgage is for $3,000, and is a first mortgage on land worth $10,000.” Hawkins’s reply to this letter does not appear in evidence, but was apparently favorable; and on the 20th of the same month Eambusch wrote Hcmkins, inclosing the note and mortgage in suit, as follows: “I inclose herewith note for $2,500, and mortgage and note of George A. Hams to Lucinda Cutler, an assignment from me, as executor of the will of Lucinda Cutler, deceased, to you, as collateral security. The land is worth $10,000, so that the mortgage is absolute security. Please deposit $2,000 in Bank of Watertown to my credit, and the balance, $500, can wait awhile, as that is mainly to pay expenses of administration, part of it coming to me.” The $2,500 note inclosed was payable three years from date, with interest at six per cent., and recited that it was secured by assignment as' collateral of the Hams note and mortgage, and was signed, “William T. Eambusch, Executor of the Last Will and Testament of Lucinda Cutler, Deceased.” It appears that, on the following day, Hawkins deposited $2,000 in the Bank of Watertown, to the credit of Eambusch, as requested in the letter, and that, between that time and the 9th of April, Eambusch collected interest on various loans belonging to Hawkins, amounting to $472.50, and by letter requested Hawkins to place $27.50 to his credit in the Watertown Bank, and allow him (Eambusch) to retain the $472.50 interest collected, and thus balance up the remaining $500 of the loan. This was done, and Eambusch subsequently drew out on his personal checks the whole sum of $2,027.50 so deposited, to his credit Rambusch disappeared in the fall of 1896, and died October 20, 1896, never having accounted to the estate.</p> <p>The circuit court found that the money borrowed of Hawkins was borrowed by Rambusch for his own personal use, and that Hawkins knew that fact, and that no part of it was used for the benefit of the estate, and concluded that the nóte and mortgage still belonged to the estate of Lucinda Cutler, and had been converted by the defendant to his own use, and rendered judgment against Hawkins for the value thereof, with costs. Proper exceptions were taken to the findings, and the defendant appeals.</p> <p>They argued, among other things, that the note given by the executor was his individual liability, though he added to his signature the words “ executor of,” etc. He could not bind the estate by any new contract. McLaughlin v. Winner, 63 Wis. 120; Miller v. Traey, 86 Wis. 330; Thomas v. Moore, 52 Ohio St. 201; Roscoe v. McDonald, 91 Mich. 270; Ferrim v. Myrick, 41 N. Y. 315; Croswell, Ex’rs (Hornbook), 260; Rose v. Bowler, 1 H. Bl. 108; Powell v. Graham, 7 Taunt. 585; Ashby v. Ashby, 7 Barn. & 0. 444; Wigley v. Ashton, 3 Barn. & Aid. 101; Corner v. Shew, 3 Mees. & W. 350. The defendant is presumed to know the law, and knew that the executor was not proceeding regularly in the settlement of the estate. By depositing the money in bank to the executor’s personal credit, he actually misappropriated it. Williams v. Williams, 55 Wis. 300; Booth 'o. Wilkinson, 78 Wis. 652; O'Connor v. .Decker, 95 Wis. 202; Black v. Hurlbut, 73 Wis. 126; School Dist. v. First Hat. Bank, 102 Mass. 174; Wren v. Kvrton, 11 Yes. 377; Rocke v. Ha/rt, 11 Yes. 58; Matthews v. Brise, 6 Beav. 239; Comm. v. McAlister, 28 Pa. St. 480; McAllister v. Comm. 30 Pa. St. 536. Such a deposit of trust fuuds to the executor’s individual credit was, in law, an appropriation to his own use.</p>

<p>(1-3) Mental incompetency: Evidence: Adjudication: Presumption as to prior condition. (4-6) Fraud: Evidence: Admissions: Burden of proof: Instructions to jury.</p> <p>1. An adjudication of mental unsoundness per se'is evidence only of the mental condition of the subject at the time of such adjudication, and thereafter upon the theory that a condition of mind onoe shown to exist is presumed to continue.</p> <p>2. An instruction that an adjudication of mental unsoundness may relate back presumptively to a prior date, as evidence of the mental condition at such date, held error.</p> <p>8. When the condition of mind of a person is shown to have been the same for a considerable period of time, an adjudication as to such condition at one date during the period is competent evidence , when the act claimed to have been affected by such condition occurred at a prior date, upon the theory that it is reasonable to say that appearances determined at one time during the period to indicate insanity or incompetency, indicate the same at other times during such period, whether before or subsequent to the adjudication.</p> <p>4. The admissions of an alleged defrauded party, made long after the act sought to be avoided for fraud occurred, are not admissible as evidence to affect the title to property involved.</p> <p>5. The giving of an instruction on a material point, susceptible of two constructions, one that condemns it and one that does not, where the jury may have adopted either construction, is reversible error.</p> <p>6. In the submission to a jury of a cause of action, predicated on circumstances which in law raise a presumption of fraud or undue influence, it is improper to say that the burden of proof is on the person charged, to disprove it. The true rule is that when circumstances are established from which, as a matter of law, a presumption of fraud or undue influence arises, then the burden of proof is on the party charged with being guilty thereof to show that he is innocent and that the alleged defrauded party acted voluntarily and of his own free will.</p> <p>[Syllabus by Marshall, J.]</p>

<p>(1) Voluntary assignment: Evidence: Examination of assignor. (2) Re-plevin: Evidence of value. (3) Sale of chattels: Rescission.</p> <p>1. In an action of replevin against an assignee, to wMclr the assignor is not a party, the latter is a competent witness, and it is not error to exclude his examination, taken under sec. 17026, S. & B. Ann. Stats. (seo. 16935, Stats. 1898), when offered, not by way of impeachment, hnt as substantive evidence.</p> <p>2. In replevin by the vendor of goods their value was alleged, both in the complaint and answer, to be a certain sum. Plaintiff’s agent who had identified the goods testified that said sum was the invoice price and that that was their value. Held, that the court, in directing a verdict, properly fixed their value at that amount, although the same witness further testified that the goods had depreciated in value forty per cent, during the twenty-two days which had elapsed since their sale, because they had been unpacked and placed on shelves and some suits and sizes sold. Jenkins v. Steanka, 19 Wis. 126, distinguished.</p> <p>3. A vendor of merchandise cannot rescind the sale and reclaim the goods merely because the purchasers, knowing themselves to be insolvent, did not disclose that fact, where no inquiries and no false statements were made and no artifice resorted to to mislead the vendor, and it does not appear that the goods were bought with the fraudulent intent of not paying for them.</p>

<p> Fire insurance: Certificate of magistrate: Amendment and repeal of statutes. </p> <p>Under oh. 195, Laws of 1891, the insurance commissioner prescribed a form for fire insurance policies, to be known as the Wisconsin standard policy, in which was a clause requiring the insured, in case of loss, to furnish a certificate of the magistrate or notary public (not interested in the claim, etc.) living nearest the place of the fire. Ch. 124, Laws of 1893, provided that whenever a certificate of a magistrate or notary should he required under a policy it should be a sufficient compliance on the part of the assured to furnish a certificate of any magistrate or notary residing in the county, not interested, etc. Afterwards, the act of 1891 having been held invalid, the legislature by ch. 387, Laws of 1895, prescribed as the Wisconsin standard policy the form previously prescribed by the insurance commissioner. The act of 1895 repealed all acts conflicting therewith, but did not undertake to revise the law on the subject of insurance. Held, that the act of 1893 was not repealed or modified,’ and that, notwithstanding the standard policy required a certificate from the nearest magistrate or notary, a certificate from any magistrate or notary in the county was sufficient.</p>

<p>(1) Fire insurance: Waiver of condition: Knowledge of existing facts. (3) Instructions to jury: Special verdict.</p> <p>1. The knowledge or information on the part of the insurer, at the time of issuing a policy, which will operate as a waiver of a condition therein must be knowledge of an existing fact or condition of things, and not a mere statement by the insured of an intention to do some act in the future contrary to such condition of the policy. Thus, the fact that the agent of a township mutual fire insurance company, at the time he wrote a policy covering household goods, saw a portable engine near the house, and was informed by the insured that it was intended for use in the future where it stood, did not constitute a waiver of a provision in the policy against the insurance of property located within 200 feet of any steam power, at least unless the engine was apparently permanently located in its position and so attached or capable of attachment to machinery that it would be apparent to the agent that it was customarily used in that place.</p> <p>2. An instruction which states to the jury what will be the effect of their answer to a question submitted for special verdict is objectionable. [Whether such an instruction would of itself work a reversal in this case, not determined.]</p>

<p> Fire insurance: Indivisible contract: Forfeiture of entire claim by false swearing as to part. </p> <p>1. A policy of insurance on a building and contents, the premium being distributed part to each species of property, is a single, indivisible contract, and under a general forfeiture clause in the policy, if one part of the risk be affected, the entire risk is affected. What bars a remedy on the policy as to one part of the property, bars the remedy as to alL</p> <p>2. If a policy of insurance cover a building and contents, and the entire property be destroyed by fire, and the policy contain a clause forfeiting all claims thereunder and barring all remedies thereon in case of any false swearing in regard to the loss, and there be such false swearing, which does, or is liable to, prejudice the insurance company as to any part of the property destroyed, tbe effect is to forfeit the entire loss.</p> <p>[Syllabus by Marshall, J.]</p>

<p> Sale of chattels: Warranty: Waiver:\ Parol evidence: Special verdict. </p> <p>1. One buying an article upon an express warranty may sue for any damages resulting from a breach without returning or offering to return such article.</p> <p>2. Plaintiff bought a horse from the defendant upon an express warranty that it was well and sound except for a cold, and, paying part of the price, gave a three-days" note for the balance, which provided that the ownership and possession should not pass from the vendor until the note was paid. Plaintiff received the horse, and paid the note when due, but without knowledge that the disease of the horse was other than a cold, and after its death brought suit upon the express warranty. Held, that there had been no waiver of the warranty.</p> <p>3. The signing of such note was not a reduction of the contract to writing, which would render parol evidence of the warranty in- ' admissible, since the note did not in terms purport to state the whole contract but was merely a document in execution of a part thereof.</p> <p>4 A question for a special verdict, “ Did the defendant sell and the plaintiff buy said horse for a sick horse, the plaintiff taking his chance? ” was not objectionable as being compound, it being conceded that plaintiff purchased the horse knowing it was sick but supposing it to be sick only with a cold, and the material part of the question being merely whether or not he agreed to assume the risk of such sickness as the horse might have.</p>

<p>Motion for leave to file a bill of- review.</p> <p>Iu 1880, one Otto D. Bjorquist conveyed a tract of land to defendant, and took back a mortgage for $16,000, which was afterwards assigned to plaintiff. The mortgage was foreclosed, the property sold, and a judgment for deficiency entered against defendant. An appeal from both judgments was taken to this court by the defendant, and the judgments were affirmed. [99 Wis. 103.] While these appeals were pending, the defendant made a motion in the superior court for leave to amend its answer, and set up new matters in the nature of a cross bill, bringing, in new parties. After the judgments had been affirmed in this court, and the re-mittitur had been filed in the superior court, that court made an order vacating such judgments conditionally, and permitting such defense to be made. Upon appeal to this court, this order was reversed. [100 Wis. 551.] After the judgment of deficiency had been rendered, the plaintiff commenced a creditor’s action, based thereon, against the defendant and its stockholders. While this action was pending, defendant claimed to have discovered facts with relation to the original transaction which rendered it fraudulent, and thereupon obtained leave from the superior court to set up the facts in the creditor’s action and bring in. new parties thereto. This action is now pending.</p> <p>On November 9, 1898, the defendant filed a petition in this court, setting out the facts as above stated, and alleging the facts at length upon which it relies to show that the transactions with Bjorquist, and the judgments mentioned, are fraudulent and inequitable. It asks an order of this court granting leave to prosecute its cross bill or complaint in the creditors’ action, or for leave to bring an action in equity against the parties, in the nature of a bill of review, to set aside the judgments heretofore mentioned.</p> <p>They argued that a bill- of review might be brought upon discovery of new facts which would change the merits of the claim, leave of court being first obtained. Story, Eq. PL §§ 412-415; Daniell, Oh. Pr. 1577,1578; Freeman, Judgments, § 485; Siowell v. Eldred, 26 Wis. 504; Barber v. JRvikeyser, 39 Wis. 590; Hiles v. Mosher, 44 Wis. 601; If evil v. Clifford, 55 Wis. 161, 163, 169; Hooper v. Smith, 74 Wis. 530; Ketehum v. Breed, 66 Wis. 85, 97, 99.</p>

G-. SiebeoKee, Circuit Judge. The relator, The Fidelity The relator is a corporation organized under the laws of the state of New York, and authorized to do the business of accident insurance. The company first applied to do business in tbis state in 1880, and each, year since has applied for and received license to transact business in this state, up to March 1, 1898.

<p> Assignment of chose in action: Inability of debtor to assignee: Consent: Partial assignments: Priority: Regents of university: Contracts: Oral modifications. </p> <p>1. A contractor for work on a building procured from the architects several certificates of the amounts which he had earned in different departments of the woi'k, in advance of the time fixed by the contract for payment, and delivered them to subcontractors for those departments, with intent thereby to assign the corresponding portions of the fund to which He was to become entitled. Held, that there was in equity an effectual assignment as between the parties and as against the contractor’s assignee for the benefit of creditors-under a voluntary assignment subsequently made.</p> <p>2. General information that his creditor is likely to borrow on the credit of a debt, or that he has in other instances borrowed upon it, or a mere suspicion that the 'creditor might have made an assignments others, does not render a debtor liable to an assignee in respect to payments made to the original creditor before receiving exact and specific notice of the assignment. .</p> <p>S. Tlie assent of the debtor is essential to the existence of a direct liability to the assignee of a part of a fund in the hands of one not a banker.</p> <p>4. The chairman of a special committee of the board of regents of the state university charged with the general direction of certain work has no authority, unless the same has been given him by the board, to modify the written contract which the board has authorized in respect to such work.</p> <p>5. A conversation between a contractor and the chairman of a special committee of the board of regents which has general direction of the performance of the contract is not binding on the board to vary the terms of the written contract thereafter formally executed.</p> <p>6. No verbal explanations or assurances by individual members of the board of regents could bind the board to an agreement either to pay or to guarantee the amount of a subcontract, nor subject the public moneys under its control to liability in excess of that authorized by the board.</p> <p>7. Where the contractor for work on a building for the board of regents, having obtained from the architects several certificates of amounts earned, assigned them at the same time to subcontractors to apply on existing debts to the latter, and the board of regents did not consent to any of the assignments so as to become liable to the assignees, the equities of the assignees are equal, irrespective of any priority in giving notice to the board.</p>

<p> Death by wrongful act: For ivhose benefit action can be maintained: Pleading: Survival of action for injuries to person. </p> <p>1.The liability created by sec. 4255, Stats. 1898, in case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued, is for the benefit of certain relatives of the decedent mentioned in sec. 4256, Stats. 1898, and' in default of such relatives there is no liability.</p> <p>2. In an action for damages under said sections, if the complaint fails to show the then existence of relatives entitled to benefit by the recovery, it is fatally defective.</p> <p>3. Under sec. 4253, Stats. 1898, actions for injuries to the person survive, though death'ensue from the injury.</p> <p>4. The right of action for an injury to the person which survives under sec. 4253 is separate and distinct from the loss to surviving relatives recoverable under secs. 4255 and 4256.</p> <p>5. If a person die from the effects of an actionable personal injury, not having received satisfaction for his damages, action therefor for the benefit of his estate may be prosecuted to satisfaction after his death. [Whether such satisfaction in advance of an action under secs. 4255 and 4256, if circumstances exist rendering such latter sections applicable in any event, would be a bar to such action, not decided.]</p> <p>[Syllabus by Marshall, J.]</p>

<p> Master and servant: Entire contract: Quitting work: Threats of violence by strikers: Recovery of wages: Liquidated damages: Instructions to fury. </p> <p>1. No recovery can be had for services under an entire contract where the employee voluntarily abandons the work, without valid excuse, before the end of the stipulated time.</p> <p>2. In an action to recover for the services of an employee who had quit work in breach of his contract, the evidence would have justified a finding either that he quit pursuant to an agreement with others to strike or that he quit because of a justifiable fear of bodily violence from the strikers. The court was asked to instruct that if he left for the former reason there could be no recovery. Held, that it was error to modify such instruction by adding the words: “ That is, if that was the reason he quit, and the danger or apparent danger was not such that a man of ordinary nerve would have refused to go on with the work, your verdict will be for defendants.”</p> <p>3. One employed for a stipulated time, if excused in leaving sooner by reason of threats of strikers to do him bodily harm, can recover only the value of his services after deducting the damages, if any, suffered by the employer by reason of the breach of the entire contract.</p> <p>4. Contractors for the loading and unloading of vessels and cars upon docks, who had given bond for prompt performance, stipulated in a written agreement with their employees that for a breach of such agreement by the latter in quitting the service the employer might retain, as liquidated damages, any wages then earned by the employee quitting, not exceeding fifteen days’ wages in all. Held, that such stipulation was justified, and that the amount so to be retained should be regarded as liquidated damages and not a penalty.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: W. E. Bailey, Judge.</p> <p>This is an action in equity commenced August 1, 1894, by the plaintiffs, as taxpayers of Douglas county, on behalf ■of themselves and all others similarly situated, against the county, its supervisors,- treasurer, and clerk, together with ■certain contractors for highway work, to enjoin the alleged illegal expenditure of $8,000, which was then about to be expended in repairing highways throughout the county. A preliminary injunctional order was obtained at the time of the commencement of the action, and served with the summons and complaint; but on the 4th of August twelve warrants had been issued, signed by the chairman of the board of supervisors and the county clerk, to various parties who had done work upon the highways, aggregating $2,984.75, and on the 6th of August nine of these orders were paid by the county treasurer aggregating $2,342.95. Thereupon an amended complaint was served early in September, alleging the issuance and payment of these last-named orders, and claiming that such payment was collusive and with intent to defeat the action, and claiming to recover all money so paid of the defendants who had received it as well as to enjoin any further payments. On the 28th of December following, a second amended and supplemental complaint was served, and additional defendants were brought in by leave of court. By this complaint it was charged that the county board had paid out $4,102.63 upon illegal highway work in addition to the $2,312.95 previously paid out, and it was sought to recover this sum of the officials who had paid it out, as well as of the parties who had received it, and to enjoin any further payments. The pleadings are long, and it is not deemed necessary to state them any more fully. The facts were mostly admitted upon the trial, and were, in substance, as follows:</p> <p>In the county of Douglas, outside of the city of Superior, there are four towns, to wit, Superior, Gordon, Brule, and Nebagamain, and there were, at the time of the commencement of the action, thirteen members of the board of supervisors, all of whom were made defendants in this action. At the November meeting, 1893, the board oí supervisors levied a county road tax of $8,000, under the provisions of sec. 1308, R. S. 1818. Prior to the 5th of June, 1891, all of this $8,000 had been spent upon the highways in the county. On the 5th of June the following resolution was passed by the board of supervisors: “Whereas, the road and bridge committee of Douglas county find that the roads and bridges throughout the county are in need of repairs: Therefore, be it resolved that the county board be requested to levy a tax of eight thousand dollars ($8,000.00) at the annual meeting in November next, for road and bridge purposes, said levy to be equally divided between the towns of Brule, Gordon, Superior, and Nebagamain; and that the chairmen of the various towns are authorized and instructed to expend two-thousand dollars ($2,000.00) in their various towns under and by direction and recommendation of the road and bridge committee of said couptv of Douglas.”</p> <p>Work immediately commenced under this resolution, consisting of filling, grading, and ditching various roads in the several towns of the county, but no road commissioners were appointed to superintend the work, nor any bonds required from contractors, as required by sec. 1309, R. S. 1878. On the 3d of August, 1894, the county board of supervisors adopted the following resolution: “ Whereas, it is evident that the money levied for normal school purposes will not be required until November: Resolved, that eight thousand dollars ($8,000.00) of that amount be transferred to the road and bridge fund, and, when the road and bridge levy is made at the annual meeting, the same shall be credited by the county clerk to the normal school fund, the same to be expended on county roads.”</p> <p>On the same day they allowed the following bills for wouk -which had been done under the resolution of June 5th, viz.: A claim for $1,007.25 in favor of the defendant MeLaggan for road work in the town of Gordon; also a claim in favor of the defendant Agen for $41.80 for road work done in said town of Gordon; also a claim in favor of the defendant Oassicly for road work done in the town of Nebagamain for $1,008; also a claim in favor of the defendant Oloney for road work done in the town of Nebagamain amounting to $927.70. On the following day twelve county orders were issued for the bills so allowed, and delivered to the defendants in'whose favor they were allowed, and on the 6th day of August, being the day before the injunctional order was served, nine of said twelve orders were presented and paid, four of which orders, amounting to $1,008 and covering the claim of Cassidy, were paid to the defendant MeClure, who was a supervisor from the town of Nebagamain, and to whom Cassidy had indo'rsed the orders. The MeLaggan orders, amounting to $1,007.25, were paid to the defendant the Duluth Trust Company, to whom MeLaggan had indorsed them; and the order for $327.70, being one of the Oloney orders, was paid to the defendant O. K. Anderson, the county clerk, to whom it had been transferred.</p> <p>On the 7th of August, 1894, the preliminary injunetional order was served with the summons and complaint, which enjoined the board of supervisors from proceeding to expend money, or doing work under the resolution of June 5, 1894, and from expending any money or doing any road or bridge work until after a road tax, not exceeding $8,000, should be thereafter levied at the annual meeting, and from expending anything after such levy “ except on main traveled highways legally laid out and duly and legally adopted as county roads,” and from allowing any bills for road or bridge work untjl after such levy, and then only for work performed after the levy, and from signing or issuing any county orders for such bills; also enjoining the county treasurer from paying any orders previously issued, including the orders issued on the 4th of August in favor of MoLaggan, Agen, Oassidy, and Oloney. On the 3d of September following, this temporary injunetional order was modified by the circuit court by striking out the words, “ except upon main traveled highways legally laid out and duly and legally adopted as county roads,” and inserting in place thereof the following words, viz. “ except main traveled highways or parts of said highways duly and legally adopted as such, or such highways or parts thereof duly and legally designated for the expenditure of county money in their repair, pursuant to section 1308 of the Bevised Statutes, and except in the exercise -of the powers conferred upon counties pursuant to section 1311 of the Eevised Statutes,” and by adding thereto the following provision: “ Ordered, further, that said injunetional order be, and the same is hereby, modified so far as the same enjoins the county board from proceeding in the manner provided by law to make necessary repairs upon roads mentioned in the above exceptions, such repairs to be paid for out of the next levy regularly made for such purposes; but the issuing of county orders therefor in advance of such levy, or the -taking of funds heretofore raised by taxation for any other special purpose, to pay for any such repairs, are hereby, during the pendency of said action and until the further order of the court, strictly enjoined.”</p> <p>Notwithstanding this order, work proceeded upon the highways of the county under the resolution of June 5th, which work was principally grading and ditching; and at the annual meeting of the board of supervisors in November, 1894, the county board duly levied $8,000 as a county road tax, under sec. 1308, R. S. 1878. At an adjourned meeting of said board of supervisors, held on the 22d of December, 1894, at which seven supervisors only were present, the remaining bills for the work done under the resolution of the 5th of June were allowed, and county oi-ders directed to be issued therefor, and were almost immediately issued, to the various persons who had performed such work, or to whom the claims for such work had been assigned, all of whom are made defendants in this action. The greater part of these orders were paid by the county treasurer on the same day. At that time there was no money in the road and bridge fund of the county, and could not be until the taxes levied at the November meeting were collected. There was much dispute as to whether the highways upon which the work had been done had been adopted as county roads, or whether they had been so designated, under sec. 1308, that the county might jtroperly spend its funds in improving them; but, in the view which is taken of the case, it is not deemed necessary to go into this dispute.</p> <p>It was undisputed that the contracts for the work which was done under the resolution of June 5th were not made by road commissioners appointed by the board of supervisors, and that no bonds, as required by sec. 1309, were ever given.by the contractors for the performance of their duties, but that each chairman made the contracts for the work done witbin bis town. It was further undisputed that none of such highway work for which the bills aforesaid were allowed was done under the provisions of sec. 1311, R. S. 1818, nor was the same bridge work done under secs. 1319, 1320, R. S. 1818.</p> <p>The plaintiffs alleged that much of the work was fraudulent in its nature, and that certain of the board of supervisors participated in the fraud and profited in the contracts, and that all of the defendants who received money upon the county orders were participants in the fraud. These allegations of bad faith, however, were negatived by the court, which found that all the contracts were made in good faith, were fully performed, and were allowed in good faith; that there was no conspiracy on the part of the supervisors, or any of them, to defraud the county, and that none of them received any profit from such work, and that the county board believed that they might issue the orders which they drew without violating the injunction, and that they acted upon the advice of counsel in so doing; that the defendant the Duluth Trust Oomptmy purchased the order held by it for a valuable consideration, and in good faith, with no knowledge of any irregularity therein. The court concluded that the plaintiffs could not maintain this action; that the roads on which the money was expended were duly designated for that purpose; and that the contracts for the road work in controversy were legal contracts, and were executed at the time of the commencement of this action.</p> <p>In pursuance of these conclusions the complaint was dismissed, and the plaintiffs appeal.</p> <p>They argued, amdng other things, that this was not a case in which one taxpayer could sue in his own behalf and obtain relief, and consequently he could not unite other taxpayers with him. Doolittle v. Broome Oo. 18 N. Y. 157; Wood v. Bangs, 1 Dak. 172; Hewoomb v. Horton, 18 Wis. 566; Willard v. Oomstook, 58 Wis. 571. The limitation upon the amount of tax that can be levied is not a limitation upon the amount which may be expended. Ha/rrison v. Mihocm-Icee Go. 51 Wis. 661-2; Howard v. Oshkosh, 33 Wis. 309; Kinsey v. Pulaski Oo. 2 Dill. 253; Emerson v. Bladrsville, 2 Pittsburgh, 39; People ex rel. Murphy v. Kelly, 76 N. Y. 475. 'The acts of the town chairmen were ratified by the county board with full knowledge of the facts. Trester v. Sheboy-gan, 87 Wis. 496; Hark v. Gladwell, 49 Wis. 172; Frederick v. Douglas Oo. 96 Wis. 411. The officers were not guilty of any fraud, and were not liable to refund the money. Wood v. Bangs, 1 Dak. 172.</p>

<p>Appeal from, a judgment of the circuit court for Rock county: John R.'Bennett, Circuit Judge.</p> <p>This is an action for personal injuries. On and prior to July 26,1896, the plaintiff was a locomotive engineer in the employ of the defendant, running between Oshkosh and Janesville. On the night of July 26th, at about 11:50 o’clock, the plaintiff was running the engine attached to a freight train southward over the defendant’s railroad, and ran into a washout about a mile and a half north of the city of Janesville, and was seriously injured. The washout had occurred during a heavy rainstorm on the evening in question, and it was located at a place where there had been for many years a small, wooden culvert. The complaint charges the defendant with negligence in originally building the culvert too small, and by allowing it to become out of repair and unsafe, and by digging away the supporting-earth and gravel on one side of the culvert, thus rendering the roadbed weak, and by failure to patrol the track and warn the plaintiff of the washout. The evidence showed that the plaintiff left Oshkosh, with his freight train, at a little after 4 o’clock in the afternoon, and that about 8 o’clock in the evening, when between Jimeau and Clyman, it rained; that at Koshkonong he was flagged, and stopped his train, and the section foreman of that section told him that his section was all right, and to go ahead. The rain continued, and near Milton Junction he could see that it had been raining hard. He stopped at Milton Junction long enough to get ■a clearance slip for Janesville, which is eight miles distant, and left Milton Junction at about 11:15 p. m. It was dark and rainy, with occasional flashes of lightning. He testifies that his train, at the time of the accident, was going ten or twelve miles an hour, and there is testimony on the part of some of the other train employees that it was going from fifteen to eighteen miles an hour. After going under the bridge called Black bridge, by a flash of lightning he suddenly saw in the track a black place fifty or sixty feet in front of him, looking like a bridge. He knew there was no bridge-there, and that it must be a washout. He had twenty-six cars in his train, and testifies that it was impossible to stop before reaching the washout, so he opened the throttle and made a run for it. The engine went over the washout, being pressed forward by the weight and momentum of the train behind, and stopped suddenly off the rails. The plaintiff was thrown against the fire box, and seriously injured.</p> <p>A special verdict was demanded and rendered as follows, ■and, in connection therewith, a general verdict was rendered for tfye plaintiff: “(1) "Was the culvert in question so constructed and maintained as to conduct through it the water which it was intended to conduct through, not only in ordinary showers, but in severe showers that would naturally ■occur during a. series of years, and which could reasonably be anticipated ? A. It was not. (2) Was the culvert in question negligently and carelessly constructed and maintained by the defendant company, or its agents or employees, so as to render it inadequate for the purpose for which it was constructed ? A. It was. (3) Was the said culvert carefully and thoroughly inspected from time to time by the employees of the company whose duty it was to give such inspection ? A. It was not. (4) Did the nearness of the gravel pit to the culvert, in the month of July, 1896, render said culvert unsafe, in view of the water that might be conducted through it ? A. Yes, it did. (5) Was the rainstorm on the night of July 26, 1896, extraordinary, unusual, and unexpected in its character, or unprecedented, and one which had only occurred at such long and irregular intervals that it would not be anticipated by men of ordinary prudence in their business calculations ? A. It was not. (6) Might the washout in the track have been discovered by the defendant railway company by reasonable and proper inspection and in time to have prevented the accident ? A. Yes, it might. (I) Was the storm which occurred on the night of July 26,1896, one likely to cause damage to the defendant’s roadbed and track, where the culvert in question was situated ? A. It was. (8) Was the defendant’s servant Stageman guilty of any negligence in not properly and carefully inspecting the road near where the culvert was, on the night in question ? A. He was. (9) Was the plaintiff in the exercise of ordinary care at and prior to the time of his injury ? A. He was. (10) Was the plaintiff injured, on the night in question, in consequence of the washout without contributory negligence on his part ? A. He was. (11) What damages has the plaintiff sustained in consequence of the -injury received on the night in question ? A. $20,000.”</p> <p>Judgment was entered on the verdict for the plaintiff, and the defendant appeals.</p> <p>They argued, mter alia, that the plaintiff was guilty of contributory negligence, as matter of law, by his failure to use the highest degree of care called for by the rules of the company, in view of the severity of the storm which caused the washout. Nolen v. N. Y. da N. H. B. Oo. 25 Am. & Eng. R. Cas. 342, '345; Pennsyl/oa/nia Go. v. Whitcomb, 111 Ind. 212, 219; Elliott, R. R. §§ 1280-1283. There was no' sufficient finding of proximate cause to support the judgment. Andrews v. 61, M. do St. P. B. Go. 96 Wis. 348; Deisenrieter v. Krcms-Merkel M. Go. 97 Wis. 279; McGowan v. G. do N.W. B. Go. 91 Wis. 147, 154, 155; Maitlcmd v. Gilbert P. Go. 97 Wis. 476; Pavis v. G., M. do St. P. B. Go. 93-Wis. 470, 482. The plaintiff was not entitled to recover the value of his wife’s services in nursing him, it being a duty she owed to him. Peterson v. Oleson, 47 Wis. 131; Good-hart v. Pennsylvania, B. Go. 5 Am. & Eng. R. Cas. N. S. 364, 366; Prinkwater v. Pmsmore, 80 N. Y. 390, 393; Chicago, B. do Q. B. Go. v. Johnson, 24 Ill. App. 468, 470; 2 Thompson, Negligence, 1258, § 44; Beed v. G., B. I. & P. B. Go. 8 Am. & Eng. R. Gas. 180 ;• Owen v. Peoples P. B. Co. 155 Pa. St. 334; Wallace v. W. AT. G. B. Go. 41 Am. & Eng. R. Gas. 212, 215; Chicago do E. I. B. Go. v. Holland^ 30 Am. & Eng. R. Gas. 590; Oolemcm v. Burr, 93 N. Y. 17, 25.</p> <p>They argued, among other things, that the plaintiff was entitled to recover for the services of his wife as nurse. The P. S. Gregory, 2 Ben. 286; Pennsylvania Go. v. Ma/rion, 104 Ind. 239; Brosnan v. Sweetser, 127 Ind. 1; Indianapolis v. Gaston, 58 Ind. 227; Penver dk B. G. B. Go. v. Lorentzen, 49 U. S. App. 81; Forbes v. Loftín, 50 Ala. 396; Klein v. Thompson, 19 Ohio St. 569; Missowri, K. do T. B. Go. v. Holman, 39 S. W. Rep. 130; Ohio da M. B. Go. v. Pick-erson, 59 Ind. 317; Gurmingham v. F. do T. H. B. Go. 102 Ind. 478, 484; Murray v. M. P. B. Go. 101 Mo. 236; Varn-hamv. Council Bluffs, 52 Iowa, 698; Fort Worth dó P. ¿7. B. Go. v. Kennedy, 12 Tex. Giv. App. 654; Summers v. Tar-ney, 123 Ind. 560. It was the duty of the railroad company to use all reasonable and proper care to build and maintain a culvert large enough to safely carry the water through it. Jarnek v. Manitowoc G. do P. Go. 97 Wis. 537.</p>

Bennett, Circuit Judge. Plaintiff lawfully took passage on a freight train accustomed to carry passengers, which, stopping at Elkhorn to do switching, left the caboose, with three or four cars attached, standing on the track.

<p>Railroads: Injury to pussengef standing on platform: Contributory neg-' ligence: Assumption of risle: Instructions to jury: Proximate cause: General and speeial verdict. '</p> <p>1. A railway passenger is not, as matter of law, guilty of negligence in standing on the platform of a car, even while it is in motion, if there is no room inside. If on boarding a car he finds it so crowded that he cannot get inside without the use of main force, and concludes to ride upon the platform, the'question whether he is guilty of contributory negligence, or has assumed the extraordinary risks of that position, is one for the jury under proper instructions.</p> <p>2. A passenger on an excursion train is entitled to just as much care for his safety as one upon a regular train. In riding upon a crowded train he assumes the inconveniences resulting from its crowded condition, but not any increased risk.</p> <p>3. In an action for injuries received by a passenger while standing on the platform of a railway car, a question in the special verdict being as to whether the negligence of defendant’s employees in coupling the car was the proximate cause of the injuries, it was error to refuse an instruction, asked by defendant, that the jury must answer such question “No ” unless they were satisfied to a reasonable certainty, from the greater weight of evidence, that it should be answered “Yes,” — the substance of such instruction not being given in the general charge.</p> <p>4. An instruction to the effect that the expressions “proximate cause” and “ direct cause ” are equivalent and mean the immediate or inducing cause, was erroneous.</p> <p>5. Where the questions submitted to the jury for a special verdict cover all the material, controverted issues of fact, the ruling of the court in refusing to submit more specific questions will not be reversed save for an abuse of discretion.</p> <p>6. The object of a special verdict is to obtain from the jury answers to ' certain questions of fact, without regard to their legal effect upon the rights of the parties, and thus to obtain a result as far as possible free from sympathy and prejudice. The requiring of a general verdict also, and giving full instructions applicable to a general verdict, tends to defeat such object, and, if objections are duly made, is a material error.</p>

<p>Appeal from, a judgment of the circuit court for Dodge county: James J. Dick, Circuit Judge.</p> <p>The opinion states the case.</p>

Mandamus to the circuit court for Winnebago county:. G-eo. W. Burnell, Circuit Judge. Proceedings commenced in this court to compel the respondent to sign and certify a bill of exceptions. An order was made granting the prayer of a petition, filed in the circuit court for Winnebago county, for the appointment of commissioners in condemnation proceedings. Thereafter such proceedings were removed to this court for review pursuant to a writ of certiorcm.

<p>Appeal from a judgment of the circuit court for Ashland county: E. W. Helms, Judge.</p> <p>On November 22, 1895, the parties to this action made a contract, in which it was recited “ that the said Shores lumber GonvpcMvy have this day sold and delivered ” to the defendants 850,000 feet of lumber piled on their dock at Ashland, at $'T.T5 per thousand feet. The defendants were to give their paper for $6,000, due March 18,1896, and pay the balance due for the lumber when the same was delivered in Chicago. Plaintiff was to carry the lumber to Chicago at going freight rates, the first trip made in the spring of 1896. The contract further provided that plaintiff was to carry about 850,000 feet of other lumber, owned by defendants, from Ashland to Chicago, that fall, if the boats could make the trip, and in case the lumber was not delivered then the agreement to purchase the lumber first mentioned was to be void.</p> <p>The complaint alleges the making of the contract, the carriage by plaintiff of so much of the defendants’ lumber as was tendered it to carry, the refusal of defendants to make and deliver their note, and their refusal to receive any of the lumber purchased by them, although plaintiff carried the same to Chicago as agreed, and tendered the same to defendants. The complaint further states that plaintiff was compelled to sell said lumber in market, and did so sell it at the best advantage, and received therefor eighty-seven and one-half cents per thousand less than the contract price.</p> <p>The answer admits the making of the contract, and alleges that after the execution thereof the defendants learned that plaintiff was not the owner of the said lumber and had no right to sell the same, and that thereupon, they refused to give their note as mentioned in the contract, unless the plaintiff would make the title good, which was not done. The other matters stated in the complaint were denied.</p> <p>After hearing the evidence, the court directed a verdict in favor of defendants, on the ground that the evidence showed that the contract had been rescinded by the parties. A motion to set aside the verdict and for a new trial was -denied, and the plaintiff appeals from the judgment for costs.</p> <p>They argued, among other things, that the contract was executed on the part of the plaintiff by carrying the agreed lumber to Chicago, so that it could not be rescinded. Defendants could not rescind unless they placed the plaintiff m statu quo. Simmons v. Putnam, 11 Wis. 193; Williams v. Fetehum, 21 Wis. 432; Herman v. Gray, 79 Wis. 182; Miller v. Palmer, 95 Wis. 526; Blake v. Pine Mountain I. dé O. Go. 76 Fed. Rep. 624. They gave no notice within a reasonable time of an intention to rescind. South MiJ/wattikee B. PL. Go. v. Harte, 95 Wis. 592.</p> <p>They contended that a breach of the implied warranty of title arose immediately upon the sale, for which the defendants had a right to rescind. Edgerton v: Miehels, 66 Wis. 124; Hodges v. Wilkinson, 17 L. R. A. (N. 0.), 545; Perkins v. Whelan, 116 Mass. 542; Grose v. Hennessey, 13 Allen, 389; Lewellen v. Grane, 113 Inch 289. They did rescind within a few days after they learned of the defect of title. The carrying of the other lumber to Chicago had nothing to do with the sale and delivery of this.</p>

<p> Sale of timber: Oontraet construed. </p> <p>1. Under a contract by which defendant was to pay a certain price for timber to be “furnished” by plaintiff, the latter is not entitled to recover the full contract price for timber which, after she had cut it, was found to belong to the United States, and for which defendant was compelled to pay the government, but defendant should be credited with the amount paid to the government,</p> <p>2. At the time of making such contract defendant was negotiating for the purchase of certain lands, and instructed plaintiff to cut the timber therefrom, and afterwards purchased and became the owner of such timber. Held, that this timber was not “ furnished ” by plaintiff under the contract, and that she could recover the contract price therefor only after crediting defendant with the value of the stumpage.</p>

<p>(1, 3) Practice: Motion for new trial: Issues. (3) Fraud: Evidence.</p> <p>Í. A motion to set aside a verdict and grant a new trial should state the grounds of the motion, and the record should show that it was made at the same term at which the trial was had.</p> <p>2. In an action to recover moneys alleged to have been advanced by plaintiff for the purchase of securities which were assigned to the defendant, the plaintiff acknowledged that he received the money from the defendant’s husband, since deceased, but claimed that it was paid to him by the deceased in satisfaction of a debt contracted seventeen years previously. Held, that such claim might be met by proof of the fact that plaintiff had for years been in straitened circumstances while the deceased had ample means and property, such evidence tending to show that the claim was fraudulent.</p> <p>3. A plaintiff who, at the trial, bases his claim on facts different from those alleged in his complaint, thereby opening the door to an inquiry respecting such facts, cannot complain that the issue so tried was not within the pleadings.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: John K. Pabish, Circuit Judge.</p> <p>The plaintiff brings this action to recover damages for an injury claimed to have been sustained by him by reason of the defective condition of a certain highway in the defendant town. The trial of the action resulted in a verdict for plaintiff. The defendant appeals from the judgment entered thereon, alleging certain errors in the reception and exclusion of evidence and in the charge of the court.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: John 3L Paeish, Circuit Judge.</p>

<p>(1) Reference: Exceptions: Appeal. (2-5) Injury from defective sidewalk: Notice: Mailing: Evidence: Contributory negligence.</p> <p>1. Objections taken before a referee must be renewed before the court on the motion to confirm or to modify or set aside the report, and the rulings of the court thereon must be preserved in the bill of exceptions; otherwise the rulings of the referee cannot be reviewed by the supreme court on appeal.</p> <p>2. Proof of the mailing of a written notice in time to reach the person addressed in the regular course of the mail, prima facie establishes the fact that it was so received.</p> <p>3. The notice of inj ury from defects in a highway, required by sec. 1339, R. S. 1878, need not be personal notice. A notice mailed to and received by the proper officer is sufficient.</p> <p>4. In an action for injuries sustained by falling on a sidewalk alleged to have been rendered uneven and unsafe by accumulations of ice and snow, it was not sufficient for plaintiff to show such condition of the walk and that while proceeding with care he fell thereon and was hurt, but he should also show that the accident was the result of the defects alleged, especially where it appeared that the whole surface of the country was slippery and icy.</p> <p>5. To run over a rough, uneven sidewalk which has been rendered slippery by ice and sleet, with knowledge of such conditions, constitutes contributory negligence.</p>

Paeish, Circuit Judge. This is an action against the school district by a school teacher to recover for five months’ wages. The facts appearing upon the trial were that the plaintiff taught the defendant’s school from September 1 to November 25,1896, under a written contract, and was paid therefor.

<p>Appeal from a judgment of the circuit court for Ashland county: JohN K. Pabish, Circuit Judge.</p> <p>Action to recover for personal injuries. The allegations of the complaint cover facts which were established on the trial, or which there was evidence tending to prove, as follows:</p> <p>1 Plaintiff was injured while in the employ of defendant as a slab sawyer in a sawmill. There was a roller bench fifty-six feet long, three 'and one-half feet wide, and three feet high, so located, for part of its length, by the side of the carriage track of a band saw used in manufacturing logs-that the manufactured material would readily pass as fast as severed from the log to such bench and be conveyed away on rollers to points where it was taken from the bench according to its kind, the lumber being taken off nearest the saw, the edging going to near the end of the bench, and being there taken off on one side into what was called a “ slasher,” the slabs to about the same point where they were taken off on the other side onto a slab bench and cut into four-foot lengths, and square timber going to the end of the bench where it was taken off by a person located there, ordinarily, for that purpose. Seven live rollers were located crosswise of the roller bench about four feet apart, commencing at the end nearer the saw, and there were similar rollers, except they were not live, all the way to the outer end of the bench. The slab bench was at the side of the roller bench, and about half the length of it, commencing at the outer end. Nearest the band saw the surface of the slab bench and roller bench about coincided, but the former inclined towards the slab saw, which was about sis feet from the outer end of the bench, so that when the saw was reached the surface of the slab bench was about one foot lower than that, of the roller bench. There were dead rollers in the surface of the slab bench, similar to those in the roller bench, so that slabs would pass easily down the incline towards the slab saw.</p> <p>As stated, the slab saw was about six feet from the outer end of the slab bench. It operated at right angles with such bench, there being a slit crosswise of the surface, six or seven inches wide, back of which a movable saw frame was located and adjusted so as to be nearly or wholly back of the slab bench and under the roller bench when the saw was running idle, but could he moved forward wholly into the slit in the slab bench as necessary in sawing up slabs. There was an iron handle attached to the saw frame, extending about six inches above and over the slab bench when the saw was swung back under the roller bench. Though the saw was designed to go back entirely clear of the slab bench when running idle, there was evidence tending to show that, at times at least, it did not go wholly back. There was nothing about the location of the saw or its surroundings that made the work of the slab sawyer unusually dangerous when he was operating it, In such work, the sawyer stood by the side of the bench in a boxed depression in the surface of the floor so that his feet were several inches below such surface. When a slab was in place over the slit, the sawyer, by taking hold of the handle mentioned, would pull the saw forward till it engaged and cut the slab in two. Then, by slightly pushing back on the handle, the saw would recede to its place under the roller bench.</p> <p>Plaintiff had an assistant and each was furnished with an iron tool about sixteen inches long with a hook end about two inches long, pointed, and bent at about right angles with the handle. The hooks were used for pulling the slabs from the roller bench to the slab bench, and generally to facilitate moving slabs and other material that came down the roller bench. Sometimes short slabs were liable to get into such positions on the roller bench as to allow timbers to run upon them and cause a blockade, and in that situation plaintiff and his assistant were obliged to go upon the slab bench, pick out the slabs, and straighten the timbers, and push them along to the end of the roller bench. When timbers came down they would stop as soon as clear of the live rollers. In that situation it was necessary for plaintiff and his assistant, one or both of them, to go upon the slab bench and move the timbers along by using the hooks. Two-additional live rollers would have lessened, or obviated entirely, the necessity'for going upon the' slab bench to do that kind of work under the circumstances mentioned.</p> <p>About five days before the injury, plaintiff complained to defendant of the dangers attending his work because of the necessity of going upon the slab bench as indicated, and defendant promised to remedy the difficulty by obtaining a proper sprocket chain so as to operate two additional live rollers. Within a reasonable time after such promise was made, the injury occurred, and in this wise: A short slab was placed on the roller bench,— too short to go over the rolls. A timber lodged on the slab, a second timber came down and lodged on that timber, and a third, coming partly crosswise of the bench, lodged on the two other timbers, forming a complete blockade. There were slabs under both of the first timbers mentioned, and slabs behind the timbers. The first timber was down to within about four feet of the slab saw and about eight feet clear of the live rollers, it having been shoved to that point by timbers or material behind it. Plaintiff and his assistant went upon the slab bench to clear the blockade. Plaintiff struck his hook into one of the timbers and pulled as hard as he could, stepping backward at the same time towards the slab saw. At the second step his hook let go of the timber, causing him quickly to take a third step, when his foot and limb went down into the slit'in front of the slab saw, whereby, either by reason of the saw being partly out into- the slit, or plaintiff’s touching 'the saw handle and moving the saw toward him, it engaged his leg and seriously injured him.</p> <p>Plaintiff appreciated fully the danger of doing the work, in which he was engaged, but subjected himself thereto so far, as before indicated, relying upon the promise of defendant to add the two additional live rollers to the roller bench. There was evidence tending to show that if plaintiff’s hook had been curved at the end instead of straight, and not been so blunt, it would have been-less liable to slip. He had the entire care of the hook and it was his duty to keep it sharp, which he did, from time to time, by filing it.</p> <p>At the close of the evidence the court, on motion of defendant’s counsel, directed a verdict in defendant’s favor. Judgment was rendered on the verdict, from which this appeal was taken, proper exceptions having been made to preserve for review the question whether the case should have been submitted to the jury.</p>

<p>Appeal from a judgment of tbe circuit court for Ashland county: JohN K. Pabish, Circuit Judge.</p> <p>Barney and Michael Eagan, indebted to their father, the respondent, in the sum of §2,100, and to others in about the sum of $6,000, had each a stock of goods. Michael Eagan executed a chattel mortgage to his father on his stock, worth about $1,500, to secure said sum of $2,100, the goods remaining in the mortgagor’s possession. On the same day, or the following, Barney transferred to his father, by absolute bill of sale and delivery, his stock of goods, then removed to Ashland, for the expressed consideration of $1,552, which was seventy-five per cent, of their inventory price. He testified that the transfer was an absolute one in payment yw tcmto upon said indebtedness. Shortly afterwards, the plaintiff, having obtained judgment against Barney and Michael Eagan, garnished the respondent, who answered, denying liability. The suit was tried in the circuit court for Ashland county with a jury. Barney testified substantially to the foregoing facts. The garnishee testified that the bill of sale from Barney was a security, and not in payment, and that, although the mortgage from Michael was executed tbe day before, they were both intended as the same transaction, namely, to secure the $2,100. At the close of the testimony, the court, on respondent’s motion, granted a nonsuit, and judgment thereon, from which the plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Taylor county: JohN K. Paeish, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: JohN K. RaRish, Circuit Judge.</p> <p>This is an action of ejectment to recover a quarter section of land which was in actual possession of the defendant, and upon which he had made improvements, and the sole question in issue was whether the defendant could recover the value of such improvements. The land in question was a portion of the lands granted to the state by the United States to aid in the construction of railroads, under the acts of June 3,1856, and May 5,1864, earned by the Wisconsin Central Railroad Company, and conveyed to that company by the state. The land was within the place limits of the grant, and was withdrawn from settlement June 12, 1856. On the 26th of June, 1887, the Secretary of the Interior revoked the order of withdrawal and formally restored the lands to the public domain, so that they were apparently open for homestead settlement. Public notice of this restoration was given,' and on the 4th of November, 1891, the defendant, JProvost, entered the land in dispute as a homestead, at the United States land office in the city of Ashland, and paid the fees of the register and receiver, and received the usual receipt of homestead entry, which recited the receipt of $18, being the amount of the fees and compensation of the register and receiver for the entry of the S. W. \ of section 17, township 45 N., range 4 W., under sec. 2290 of the Revised Statutes of the United States. The proper entries were made in the register of homestead entries kept in the local office, and upon the plats of government land in said land, office, showing that the land had been entered by the defendant as a homestead. The defendant immediately took possession of the land, erected a dwelling house thereon, began clearing away the timber, moved his family thereon, and has ever since continued to reside there.</p> <p>This action was commenced October 10, 1895. The defendant’s answer admits the plaintiffs’ title, and counterclaims for the value of his improvements since his entry, under sec. 30.96, R. S. 1878. The facts were all stipulated, and the value of the improvements was stipulated to be $900. Motions to direct a verdict were made upon both sides, and the court directed a verdict in favor of the plaintiffs for the possession of the land, and in favor of the defendant for the value of the improvements. Judgment was entered upon this verdict, and from so much of the judgment as permits the defendant to recover for improvements the plaintiffs appeal.</p> <p>contended that sec. 3096, R. S. 1878, is remedial and should be liberally construed. Eekha/rdv. Donohue, 9 Daly, 214; Hudler v. Golden, 36 N. T. 447; Weed v. Tueleer, 19 N. T. 422; Sutherland, Stat. & Const. Law, § 437. The intention of the statute in such case will prevail over its literal terms. Wilb. Stat. Law, 235; Avery v. Groton, 36 Conn. 304; Fox v. Sloo, 10 La. Ann. 11; Smith v. Stevens, 82 Ill. 554; Vigo’s Oase, 21 Wall. 648; State v. Powers, 36 Conn. 77; Houk v. Ba/rthold, 73 Ind. 21; Sutherland, Stat. & Const. Law, § 409; Pacquette v. Pioloness, 19 Wis. 219. The statute was intended to apply to all cases where improvements had been honestly made by the party in possession under a supposed title or one that might ripen into a title. R. S. 1849, ch. 107; sec. 2, ch. 84, Laws of 1857; secs. 30-34, ch. 141, R. S. 1858; ch. 273, Laws of 1861; sec. 3096, R. S. 1878; and ch. 282, Laws of 1893. Under a homestead entry the records of the government land office, together with the receiver’s receipt, constitute a written instrument under said section. Whittaker v. Pén-dola, 78 Cal. 296; Cawley v. Johnson, 21 Fed. Rep. 495. A homestead entry conveys an immediate, valid, subsisting title and interest in the lands so entered. White v. II. & D. B. Go. 2 Copp, Pub. Land Laws (1882), 878; Wilcox v. Jackson, 13-Pet. 516; Witherspoon v. Duncan, 4 Wall. 218; Bwrlmgton, H. da 8. W. B. Go. v. Johnson, 38 Kan. 142; JJ. 8. v. Turner, 54 Fed. Rep. 225; U. 8. v. Ball, 31 Fed. Rep. 667; 27.8. v. Freyberg, 32 Fed. Rep. 195; Culbertson I. da W. P. Go. v. Olander, 51 Neb. 539; Bed Bwer da I.W. B. Go. v. Share, 32 Minn. 95; Pcdrier v. Gomm’rs of Basca Go. 68 Minn. 297; Nelson v. Big Blackfoot M. Go. IT Mont. 553; Northern B. Go. v. Gould, 21 Cal. 254; Lytle v. Arkansas, 9 How. 334. And sucb entry segregates the lands from the public domain, and holding under such entry is “ color of titlef Culbertson 1. dá W. P. Co. v. Olcmder, 51 Neb. 539; 1 Copp, Pub. Land Laws (1882), 387, 388; 1 Land Dec. Dept. Iut. 58-60; White v. H. da D. B. Go. 2 Copp, Pub. Land Laws-(1882), 878; Wilcox v. Jackson, 13 Pet. 516; Edgertonv. Bird, 6 Wis. 527; McMillan v. Wehle, 55 Wis. 685; Wright v. Mat-tison, 18 How. 50; Woodwmxl v. Blcmchcvrd, 16 Ill. 430; Bogardus v. Trinity Ghurch, 4 Paige, 200; Olapp v. Bro-magham, 9 Cow. 556; Jackson v. Todd, 2 Caines, 183; Jackson v. Harder, 4 Johns. 208.</p>

<p>Appeal from a judgment of the circuit court for Bayfield county: JohN IL Paeish, Circuit Judge.</p> <p>Action in form to recover on a contract of employment to scale logs, and to secure a lien judgment, based on the following facts which were established by evidence on the trial:</p> <p>John McAlpine, A. B. McDonell, and Thomas Irvine as parties of the first part, and the South Shore Lumber Oom-jpamy as party of the second part, all joined as defendants here, made a written contract by which the latter purchased of the former a quantity of saw logs, agreeing to pay a price therefor named in such contract, according to the measurement thereof to be made on the log deck of the purchaser’s sawmill by a scaler mutually agreed upon, or, in default of such agreement, a scaler appointed by one Cochran. In respect to changing scalers in case of either party being dissatisfied with one previously appointed, the contract provided as follows: “If the scale of any person selected under this contract to make said scale shall prove unsatisfactory to either party, then such party shall have the right to insist upon a change of scalers, and a new scaler shall be appointed.” The language in regard to the selection of a scaler by the mutual agent, Cochran, was as follows: “And in case of a. failure of the parties hereto to agree upon such scaler, then the scaler shall be designated by Judge Cochran of Ash-land.”</p> <p>The latter clause of the contract became operative, resulting in the appointment of plaintiff by Cochran. Pursuant thereto, between the 12th day of June, 1896, and the 7th day of July thereafter, plaintiff actually worked, as defendant conceded on the trial, about eleven days. Plaintiff conceded payment in full for eight and one-half days’ work, one half by each party, and also payment for one-half time by the first parties to the log sale contract, for the time till he consented to terminate his relations with the parties, October 4, 1896. July 7, 1896, the South Shore Lumber Gornpcmy being dissatisfied with the plaintiff as scaler, declined to allow him to continue work, and duly notified him in writing to that effect. The situation as stated was brought home to the first parties. They declined to consent to changing scalers, and directed plaintiff to continue work and to hold himself in readiness to scale the logs whenever there were logs to be scaled. The result was that the South Shore Lumber Gomr jpo/uy, insisting upon their right to a change of scalers, did not saw any logs or permit any to be scaled under the contract, till after October 4, 1896. Plaintiff held himself in readiness to scale the logs during all such time. After October 4, 1896, the parties made provision for scaling the logs, and the work was completed during the fall, the amount, as it appears, being some less than 1,500,000 feet.</p> <p>This action was brought in form to recover for ninety-seven days’ work from the 12th day of June, 1896, to October 4,1896, at $120 per month, less the amount theretofore paid plaintiff. The amount claimed to be due was $204 and interest from October 6, 1896. On the trial plaintiff testified that the $204 was for time between July 14 and October 4,1896; that he did not perform any work during that period. Pacts were established requisite to a lien judgment for work performed. At the close of the evidence defendant’s counsel conceded tbe evidence warranted a finding of $11.52 as duo plaintiff for work on tbe logs, and on the theory that» one of tbe joint employers alone could terminate their relations with tbe scaler if dissatisfied with him, moved tbe court to direct a verdict in plaintiff’s favor for $11.52, and that it was a lienable claim on tbe lumber as prayed for in tbe complaint. Tbe motion was overruled, tbe court bolding that neither of tbe joint employers could discharge plaintiff without consent of tbe other, hence that be was entitled to full wages, at $120 per month, up to October 4, 1896, less what bad been paid him. The court submitted tbe case to tbe jury, but in effect, by tbe charge, directed a verdict for plaintiff for $204 and interest, making in all $216.92, and that it was a lienable claim. Judgment was rendered accordingly, from which this appeal was taken.</p>

<p> Plats of land: Dedication of streets: Acceptance: Injury from, defective sidewalk built by private individual: Notice of defects: Contributory negligence. </p> <p>1. On the recorded plat of an unincorporated village, at the easterly end of a street running a little north of east, a triangular piece of •ground was left uninclosed, within the limits of the plat but adjoining a quarter-section line which was its northern boundary. All parallel streets were left open at their easterly ends, indicating an intention to have them connect with the streets of additions to be made on that side; and for that purpose the triangle in question would be necessary. Held, that the triangle was dedicated as part of the street.</p> <p>2. A resolution of the town hoard ordering such street to he opened up for trafile to its easterly end, followed hy working of portions thereof, constituted an acceptance by the town of that street, including the triangle.</p> <p>3. The presence,'in a public street, of a sidewalk largely traveled by the public for some months before an accident thereon, rendered the town responsible for its defects, although it was originally constructed by a private individual and for private use.</p> <p>4. Knowledge on the part of the proper authorities of the generally defective and rotten condition of a sidewalk does not charge them with notice of a specific defect alleged to have caused an injury, where such specific defect was of a different kind and in no way connected with the generally defective condition.</p> <p>5. If, in this case, the defect causing plaintiff’s injury was a part of or included in the generally defective condition of the sidewalk, it was a question for the jury whether, in view of his familiarity with such condition, he was not guilty of contributory negligence in failing to exercise greater precaution against injury thereby.</p>

Y. BaRdeeN, Circuit Judge. This action involves less than $100, and comes here upon certificate of the circuit judge. The facts certified are in substance as follows: Stadler had a valid judgment against Smith for $12.50, and issued execution thereon, and commenced garnishee proceedings .under sec. 2753, R. S. 1878.

V. Babdeef, Circuit Judge. Action to recover compensation for a bodily injury received by plaintiff ■while in the employ of the defendant, alleged to have been caused by actionable negligence for which defendant is responsible. The facts stated in the complaint were sufficient to constitute a cause of action, unless ch. 304, Laws of 1897, applies.

Y: Babdeeh, Circuit Judge. On December 18, 1896, Frederick A. and Clarence G. Hanover, copartners, being insolvent and without expectation of working out of said insolvency, mortgaged their entire partnership stock in trade to the garnishee defendant, Henry D. Hcmover, to secure the note of Clarence G. Hanover to said Henry J).

Y. BardeeN, Circuit Judge. The appeal is from an order setting aside a special verdict and granting a new trial. The facts are stated in the opinion. .

<p> Estoppel: Disclaimer of title to land: Record. </p> <p>1. The plaintiff corporation, being the owner of pine lands, was applied to by defendants to fix a price on certain tracts, including the tract in suit. It gave a price on the other lands, but stated positively to defendants that it did not own the tract in suit. It knew, at the time, that defendants were logging all the pine lands they could profitably purchase in that vicinity and were constantly in the market to buy such lands, and that one B. claimed to own the tract in question under a tax deed and had offered it for sale to others. Relying on plaintiff’s disclaimer, defendants bought the tract from B. Held, that plaintiff was estopped from asserting its title as original owner of. the tract, even though it believed, when it made the disclaimer, that B.’s tax title was valid.</p> <p>2. The fact that the state of the title was apparent from the record did not prevent an estoppel, the positive disclaimer by plaintiff having been such as to encourage and mislead defendants into expenditure upon the bad or doubtful title. Gove v. White, 20 Wis. 425, and Kingman v. Graham, 51 Wis. 232, distinguished.</p>

<p> Counties: Estoppel: Mistakes of officers: Tax titles: Limitations: Exemp~ tions: Presumptions. </p> <p>1. A public corporation is not estopped by mere mistakes of its officers in performing their official duties imposed upon them by law.</p> <p>2. A county is not estopped from claiming title to lands which, as lands of the county, were exempt from taxation, by reason of the acts of officers in taxing the lands, selling them for the taxes, and stating at the time of the tax sale that the county had no interest in the lands, although the purchaser relied upon such statement in purchasing at such sale and thereafter taking a tax deed.</p> <p>3. The provision of sec. 1191, R. S. 1878, that the county shall be the exclusive purchaser at a tax sale of lands upon which it already holds a tax certificate does not prevent the statute of limitations running in favor of a tax deed based on a tax sale of such lands to a different purchaser, where the lands were not exempt from the taxes for which such sale was made.</p> <p>4. Under the provision of sec. 1191, R. S. 1878, that lands shall be exemxjt from taxation when a tax deed shall be issued to a county and it shall hold the certificates of tax sales for two successive years subsequent to the sale on which such deed shall issue, there is no presumption that the county to which a deed is issued holds the certificates of such other sales, although the section provides that the county shall be the exclusive purchaser at such sales, since the former owner may have paid the taxes for those years; but where the lands are subsequently taxed and sold for taxes to another person the presumption is, rather, that the lands were then subject to taxation.</p>

<p>Appeal from a judgment of tbe circuit court for Oneida county: ChasvY. BabdeeN, Circuit Judge.</p> <p>Plaintiff, in May, 1895, duly surrendered, for refund, tax certificates upon sales for taxes for the years 1889 to 1892, on certain lands in Oneida county, which certificates were invalid for various reasons not affecting the groundwork of the taxes. Her claims being disallowed, she appealed to the circuit court. She also had sundry other claims upon' invalid tax deeds and certificates, which were presented to, and disallowed by, the county board, and appealed to the circuit court 'at the same time with those involved in this action, amongst others being claims upon two tax deeds, one issued in 1892 upon the sale of the year 1889, and the other issued in September, 1893, based upon tax sale of 1890, which deeds covered some of the same lands included in the certificates involved in this action. The court found that both of said deeds were invalid. The lands here involved are within the territory which, by ch. 150, Laws of 1893, taking effect April 15, 1893, was included in the county of Yilas. The circuit court rendered judgment for the plaintiff for the refund of the various taxes covered by the certificates involved, from which judgment the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Dane county: R. G-. SiebecKer, Circuit Judge.</p> <p>This action was brought to rescind an exchange of real estate made between plaintiff and defendant Beebe, on the ground of fraud, and for appropriate relief restoring plaintiff to his former situation. Defendant Bolm was made defendant as a purchaser from Beebe, with notice of the fraud complained of. He answered denying bad faith on his part .and claiming to be a bona fide purchaser. Beebe answered, and the issues of fact raised by the pleadings were decided by the court substantially as follows:</p> <p>Plaintiff was the owner of 120 acres of land known as the Sun Prairie farm, and certain other real estate, and some personal property described in the complaint, situated in Dane county, Wisconsin, the real estate being worth $5,600, incumbered for $2,950, and the personal property being worth $1,093.55. Defendant Beebe owned a tract of land in the state of Tennessee consisting of about 323 acres, worth $646. Plaintiff was an uneducated man, weak in mind and body, bis condition being such that at intervals he had the appearance of being confused and unable to comprehend the relation of things. He was a simple-minded man, of confiding disposition, and was weak in mind and body, as stated, during all the times mentioned in the findings. October 5, 1893, while plaintiff and Beébe were circumstanced, and the conditions existed, as stated, the latter, for the purpose of inducing the former, who knew nothing of the facts, to trade the Dane county property for the Tennessee property and $200, knowingly and falsely represented that the latter was heavily timbered, valuable for farming, and worth from $15 to $20 per acre. Upon the faith of such representations, and not otherwise, plaintiff agreed to make the exchange as proposed by Beebe, and accordingly, on that day, proper instruments were duly executed; those transferring the Dane county property to Beébe we're duly delivered and properly recorded. Thereafter the parties together visited Tennessee, and there, on the 13th day of October, 1894, plaintiff still having no personal knowledge of Beebe's property, but relying on his representations as to its value and character, and not otherwise, accepted the’ deed thereof, and thereafter caused the same to be properly recorded.</p> <p>The representations made by Beebe as stated were false, there being very little timber on the land, and none of value, and the land’ being unfit for cultivation and not worth to exceed two dollars per acre. Plaintiff did not comprehend how he had been deceived and defrauded by Beebe till shortly before the commencement of this action, and upon his understanding the situation in that regard he demanded a rescission of the whole transaction, offering at the same time to fully restore Beebe to his former situation. Beébe paid the incumbrances on the Dane county land, mortgaged the farm for $3,000, and contracted in writing to sell the same to defendant Bohn for $6,000, $500 of which was paid down and the balance in fifteen years absolutely, the net receipts of the farm, in. the meantime, to be applied annually on the purchase money, and the deferred payments to bear interest at the rate of six per cent, per annum payable annually. Bohn acted in good faith, without notice of any wrong to plaintiff in his transaction with Beebe. Beebe received on the land contract before this action was commenced, in addition to the down payment of $500, two instalments of interest of $330 each, and after the action was commenced, upon a third instalment of interest falling due, BoTm deposited it in the Deerfield Rank for the use of whomsoever the court in the action should decide was entitled thereto.</p> <p>On the facts above stated the trial court decided that plaintiff was entitled to a rescission of the land trade, to have all the instruments made to effect such trade adjudged-void, saving only the rights of Bohn and the mortgagee, the ’ judgment to be so framed as to divest and revest the titles accordingly, to judgment against Beebe for $1,093.55 worth of personal property received by him of plaintiff and $1,160 received on the Bohn contract, less $200 received by plaintiff on the land trade, making in all $2,053.55, and in addition thereto interest on the sums mentioned from the time Beebe received the same, and to judgment awarding plaintiff the special deposit of $330, and costs against Beebe. The court further decided that Bohn should recover costs against Beebe. Exceptions were filed to the court’s' findings and conclusions. Judgment was rendered in all respects according to the foregoing, from which Beebe appealed. .</p>

<p>(1) Partnership; Dissolution by death of active partner; Continuance of business by administrators: Inability of dormant partner for losses. (2) Interest.</p> <p>1. The partnership relation existing between a dormant partner and the ostensible proprietor o£ a business, under an agreement treating the property as belonging to the latter and providing that he should repay the amount which the former had invested in the business, with interest and a share of the net profits, was dissolved by the death of the active partner, in whose possession all the partnership assets then were; and the business was thereafter carried on by his administrators in the name of the estate, with the knowledge and consent of the former dormant partner, who did not take possession or control as survivor or constitute said administrators his agents to continue the business. Afterwards said dormant partner brought suit to foreclose a mortgage which had been given to him by the active partner to secure the repayment of the amount invested by the dormant partner in the business. Held, that in such action the dormant partner was not chargeable with any part of the losses incurred in the business after the dissolution.</p> <p>S'. Where, pursuant to an option given him, the holder of a note has, before its maturity, declared the whole amount thereof to be due and payable, interest coupons subsequently maturing will not bear interest, in the absence of a clearly expressed written agreement to that effect.</p>

<p>Ebeoe to review a judgment of the circuit court for Wau-kesha county: James J. Dick, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Eau Claire county: W. E. Bailey, Circuit Judge.</p> <p>This was an appeal from order sustaining demurrer to a complaint which alleged that plaintiffs were executors under the will of Mary Alien, deceased; that in her lifetime the defendant falsely and fraudulently represented to the deceased, substantially, that if she would execute and deliver to him a note and mortgage for $1,300, he would take proceedings to recover back certain lands formerly owned by her deceased husband, for the executors of his estate; that the law required that before taking proceedings he should be paid his fee, otherwise the case would be thrown out of court; that a note and mortgage for attorney’s fees could not be assigned, and that he would attach to the mortgage a written agreement, specifying what he was to perform, to.be placed upon the records with the mortgage; that the false statements were made by the defendant wil-fully and fraudulently, knowing them to be false,-and for the purpose of deceiving said Mary Allen and inducing her to execute said note and mortgage, which she did in reliance thereon; that said representations were false, and that the defendant did not carry out any of said false and fraudulent promises, but did assign the said mortgage, which was thereafter foreclosed, and the property sold; and that, by reason of the false and fraudulent representations so made as aforesaid, the estate of said Mary Allen has suffered the loss of the real estate mortgaged, to its damage in the sum of $2,500, and by reason of the payment of a deficiency judgment said estate has been damaged in the further sum of $171.01. Judgment was accordingly demanded for $2,677.01. The demurrer was general.</p> <p>Appellants contend that the complaint may be construed to state a cause of action in asswnpsit, but, if not, that the action for deceit survives to the executors.</p> <p>To the point that the cause of action survived, he cited sec! 3252, S. & B. Ann. Stats.; Haight v. Hayt, 19 N. Y. 464; Gregin v. Brooklyn O. T. H. Go. Y5 N. Y. 192; Hegerich v. Eeddie, 99 N. Y. 258; Bcmdall v. E. W. Tel. Go. 54 Wis. 140; Baker v. Grcmdall, Y8 Mo. 584, 4Y Am. Rep. 126; Pomeroy, Remedies (2d ed.), § 14Y.</p>

Appeals from judgments of the circuit court for Eau Claire county: W. F. Bailey, Circuit Judge. These cases were reported by the judge of the Seventeenth circuit as involving legal questions of such doubt and difficulty as to warrant consideration and decision by this court. The facts involved in each case are substantially the same, except as herein stated. The several plaintiffs were creditors of Thomas E. Dowling’.

<p>Error to review a judgment of the eireuit court for Eau Claire county: ~W. E. Bailey, Circuit Judge.</p> <p>W. 8. Oonrad commenced an action in the circuit court for Eau Claire county against Thomas F. DowUng, and summoned the plaintiff in error as garnishee. The latter had insured property belonging to Dowlñng, which had been destroyed by fire, and Oonrad was seeking to secure payment of a debt due him from Dowling by the garnishment proceedings. The garnishee answered, denying liability. Issue thereon was taken, but it was finally determined that the garnishee was not liable, and a stipulation was made that the proceedings should be dismissed with costs. Judgment of dismissal was duly entered, and costs taxed at $48.72. Upon a motion to review such retaxation, the court disallowed all items for taxable costs, and allowed judgment to stand for $8.35 disbursements. The garnishee seeks to review the action of the circuit court by this writ of error.</p>

<p> Public lands: Homestead entry: Mortgage prior to patent. </p> <p>A mortgage given by one who has entered land as a homestead under the federal statutes and has received the final receiver’s receipt or certificate is valid as against the mortgagor and those claiming under him, even though given prior to the issue of the patent, if given and received in good faith.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: W. E. Bailey, Circuit Judge.</p> <p>The plaintiff sued, as receiver of the Oshkosh Mutual Fire Insurance Company, to recover on a premium note given by the defendant July 1, 1889. The defendant answered, alleging, in substance, that the note was void on account of a provision in the policy that the policy should be void if the defendant was not the sole and unconditional owner of property, or if there were kept, used, or allowed on the premises certain explosives, including benzine; that both of these conditions had been broken; and that the premium note was therefore without consideration.</p> <p>It appeared on the trial that the insured' buildings were a large furniture factory, and that the defendant’s title at the time of the issuance of the policy consisted of a conditional deed, dated January 6,1888, the conditions being that the defendant was to erect a furniture factory of a certain size, and to operate the same continuously for five years, with a certain number of workmen, or to pay the grantor $10,000, and, in case of default of both of these conditions, the property to revert to the grantor. An absolute deed was executed at the same time and placed in escrow under a written contract providing for its delivery at the end of five years in case all the conditions under the other deed were complied with. This absolute deed was afterwards delivered, in. August, 1893. The plaintiff was appointed receiver of the insurance company in November, 1889. At all times during, the continuance of the policy the defendant kept benzine on the premises for use in the manufacture of furniture.</p> <p>At the close of the evidence the court, being of the opinion that the case only presented questions of law, directed a verdict for the plaintiff, subject to the opinion of the court, and afterwards, being of the opinion that the undisputed facts entitled the defendant to judgment, set aside the verdict and rendered judgment for the defendant.</p> <p>They contended, inter alna, that only the insurer could take advantage of the alleged forfeitures. Miner v. Phoenix Ins. Oo. 27 Wis. 693; Webster v. Phoenix Ins. Oo. 36 Wis. 67; Viele v. Germa/nia F. Ins. Oo. 26 Iowa, 9; Gams v. St. Paul F. dk M. Ins. Oo. 43 Wis. 108; Appleton I. Oo. v. British Am. Ass. Oo. 46 Wis. 33; Cannon v. Home Ins. Oo. 63 Wis. 685; Titus v. Glens Falls Ins. Oo. 81 N. T. 410; Renier v. Dwelling House Ins. Oo. 74 Wis. 89; Rasmusen v. FT. Y. I. Ins. Oo. 91 Wis. 81; Schultz v. Caledonian Ins. Oo. 94 Wis. 42; Osterloh v.' New Denmarlc M. H. F. Ins. Oo. 60 Wis. 126; Bourgeois v. Mut. F. Ins. Oo. 86 Wis. 402. The printed part of the policy in this case must give way to that which is written, because the two are in conflict. Hall v. Ins. Oo. of N. A. 58 N. T. 292; Harper v. Albany M. Ins. Oo. 17 N. Y. 194; Bryant v. Poughlceepsie M. Ins. Go. 17 N. Y. 200; Harper v. N. Y. O. Ins. Oo. 22 N. Y. 441; Steinbaeh v. la Fayette F. Ins. Oo. 54 N. Y. 90; Pindar v. Kings Oo. F. Ins. Go. 36 N. Y. 648; Wall v. Howard Ins. Oo. 14 Barb. 383; Moore v. Protection Ins. Oo. 29 Me. 97; Niagara F. Bis. Oo. v. DeGraff, 12 Mich. 124; Stout v. Commercial TT. Ass. Go. 11 Biss. 309; Whitmarsh v. Oonway F. Ins. Oo. 16 Gray, 359; Archer v. Merchants1 da M. Ins. Oo. 43 Mo. 434; Oitñzend Ins. Co. v. McLaughlin, 53 Pa. St. 485; Qi/rard F. do M. Ins. Go. v. Stephenson, 37 Pa. St. 293.</p> <p>They contended, inter alia, that the title of the insured was such that he could not have recovered in case of loss. Gettelman v. Commercial JJ. Ass. Go. 97 Wis. 237; Wilcox v. Continental Ins. Go. 85 Wis. 193; McFetridge v. Phmim Ins. Go. 84 Wis. 200; Waller v. Northern Ass. Go. 2 McCrary, 637; Davis v. Iowa S. Ins. Co. 67 Iowa, 494; Dwelling House Ins. Co. v. Mapnolds, 41 Ill. App. 427; Clay F. do M. Ins. Go. v. Huron S. do L. M. Go. 31 Mich. 346; McOormick v. Springfield F. do M. Ins. Go. 66 Cal. 361; Guthbertson v. FT. O. H. Ins. Go. 96 N. C. 480; Wineland v. Security Ins. Go. 53 Md. 276.</p>

<p> Equity: Reformation of deed: Mistaice: Laches: Trusts and trustees: Adverse possession. </p> <p>1. Mere delay, short of the statutory period of limitation, in bringing an action to reform a deed does not preclude the granting of such relief, where the action is brought soon after the discovery of the mistake on which it is based, and it does not appear that the other party has been prejudiced by the delay.</p> <p>2. The possession of land by a trustee is the possession of the cestui que trust and will not, however long continued, ripen into title in the trustee.</p> <p>3. By mistake the land in question, the title to which was held in trust, was conveyed by the trustee with other lands to a corporation of which he was president and manager, conducting its business and his own as if they were one. When he afterwards withdrew from the corporation he conveyed to it all his property of every kind in consideration of its assuming certain indebtedness. Thereafter the corporation delivered to him a lease of the land in question which had been executed by it as lessor, with intent to relinquish any claim to the property. The mistake had not then been discovered, and both parties supposed the legal title to this land was still in the trustee. Held,ia. an action by the cestui que trust to .correct the mistake by reformation of the original deed to the corporation, that the latter was not entitled, as a condition of a recovery, to have the cestui que trust pay to it the sum, if any, which he owed the trustee on account of the land. \</p>

<p>Appeal from an order of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>Action for an accounting and to compel a reconveyance-of property. The substance of the complaint is stated in the opinion. The appeal is from an order sustaining a general demurrer. '</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: Jakes O’Neill, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>This is an action to recover $500 and interest for money loaned. The complaint contains two counts, one upon a promissory note, and one for money had and received. The undisputed fact was that the money was loaned by the plaintiff to one Arthur Jackson, the defendant’s son, who was operating a large jewelry store in the city of Eau Claire for his father, and that a note was given for it signed by Arthur Jackson as bis father’s note. Arthur Jackson represented to plaintiff that the money was for use in his father’s business; but the defendant denies that Arthur had any authority, either real or apparent, to borrow money or to execute the note, and further denies that the /money borrowed was used in his business. Upon a former trial, judgment was rendered for the defendant, and upon appeal to this court that judgment was reversed. 91 Wis. 64.</p> <p>The case has been tried again, upon evidence not differing greatly from that produced upon the former trial, and the following special verdict was rendered: “(1) Had Arthur Jackson authority from defendant to borrow money on defendant’s credit, to be used in defendant’s business, on the 13th day of March, 1895? A. Yes. (2) Was the money received by Arthur Jackson for the plaintiff upon the note in question paid, laid out, and expended in the business carried on by Arthur Jackson ? A. Yes. (3) Did the plaintiff loan the five hundred dollars in question on the credit of the defendant, believing that defendant’s son, Arthur Jackson, was authorized to borrow the same on such credit ? A. Yes. (4) Was the note in question executed and delivered to the plaintiff by Arthur Jackson as his own note, or as the note of his father, Anékrew Jackson ? A. Andrew Jackson's note. (5) If you answer the second question in the affirmative, then did the defendant, prior to the commencement of this action, know that said money had been used in his business, or have knowledge of facts and circumstances sufficient to put him on inquiry and to enable him, by the exercise of reasonable diligence, to discover the facts ? A. Yes. (6) If you answer the fifth question affirmatively, then after the defendant had such knowledge or notice, and after a reasonable time in which to discover the facts, did the defendant thereafter, and before the commencement of this action, have reasonable time within which to return said sum of five hundred (500) dollars to plaintiff. A. No.”</p> <p>Upon this verdict judgment was rendered for the plaintiff, and the defendant appeals.</p>

Action to recover a balance of $199.50 alleged to be due plaintiff from defendants on a sale to the latter of two-carriages. -The answer admitted a purchase from plaintiff and acceptance by the defendants of one carriage, and that there was due thereon $57.

The plaintiff brought an action against the defendant, and summoned O. S. Lee as garnishee. The defendant defaulted, and the garnishee answered, denying liability.

Tbe relator was plaintiff in a suit to close up a corporation from wbicb be, a stockholder, bad received certain security for advances. On December 30, 1897, order and judgment was entered allowing final account of tbe receiver, sustaining plaintiff’s security, and directing distribution of tbe proceeds of assets amongst creditors. The next regular term •of that court commenced tbe third Monday of March.

<p>Appeal from a judgment of the circuit court for Wal-worth county: EítANK M. Eish, Circuit Judge.</p> <p>They argued, inter alia, that the amendment is a plea in abatement, and was not pleaded in its proper order, and could not be joined with a plea in bar. Brown Co. v. Van Sir alen, 45 Wis. 675, 677; 1 Chi tty, PL (11th Am. ed.), 446; Johnson v. Wilson, 1 Pin. 65; Beif v. Paige, 55 Wis. 496, 502; HooTeer v. Greene, 50 Wis. 271, 276; St. Glam F. Academy v. FT. W. Nat. Ins. Go. 101 Wis. 464; Vincent v. Stories, 45 Wis. 458, 460; Dutcher v. Dutcher, 39 Wis. 651, 660. To permit it to be set up after plaintiff had rested at the trial was an abuse of discretion. Fogarty v. Horrigam, 28 Wis. 142; Sweet v. Mitchell, 19 Wis. 524; Dole v. Northrup, 19 Wis. 249; O’ Connor r. G. dk N. W. R. Go. 92 Wis. 612; Morga/n v. Bishop, 61 Wis. 407; Smith v Dra-gert, 6Í Wis. 222.</p>

<p> Partnership: Certificates of stock: Assignment: Óhattd mortgages: Garnishment: Election between remedies: Accounting. </p> <p>1. 'Where partners have by agreement used certificates of stock to indicate the proportionate interest of each in the firm, a transferee of such certificates does not become a member of the firm, in the absence of an agreement to that effect, but obtains merely the right to demand an accounting and to receive the proportionate share of the net firm property after such accounting.</p> <p>2. A transfer, as collateral security, of certificates of stock used by partners to indicate the proportionate interest of each in the firm is not a chattel mortgage within the meaning of sec. 2313, Stats. 1898, providing for the filing of such mortgages. That statute applies only where the mortgaged property is capable of manual delivery.</p> <p>3. A partner whose interest in the firm was indicated by certificates of stock assigned such certificates, either absolutely or as collateral security, to various persons. Afterwards, by bill of sale,- he transferred his apparent interest in the partnership to an innocent purchaser, promising to deliver the certificates in a few days, the consideration to be paid on their delivery; and the purchaser took possession of the seller’s interest. Before the consideration was paid a creditor of the seller garnished the purchaser, and she brought the agreed price into eouit. The assignees of the certificates were interpleaded, and each answered claiming a share of said fund. Held, that this constituted a ratification by said assignees of the transfer to the garnishee, and an election to consider the money as standing in place of their interests or rights in the firm assets. Th® rights of all parties might therefore be properly adjusted in the garnishment action without an accounting.</p>

<p> Contracts: Construction: Conveyance of railroad property: Logs and logging: Custom. </p> <p>1, At the time of making a contract by which defendants were to cut and deliver large quantities of logs each year for several years at plaintiff’s sawmill, it was agreed that defendants should purchase from plaintiff, among other things, a logging railroad and its equipment, then used in carrying logs to said mill. A bill of sale was executed, conveying in general language all of plaintiff’s camp and logging outfit, with a specification of the different kinds of property of which said outfit consisted, the description therein of the railroad property being as follows: “One locomotive, eighteen cars, and all the rail and railroad material of every name and nature.” Thereafter plaintiff turned over the railroad property as it then existed to defendants, and it was used by them for a considerable time, and until trouble arose between the parties, with no intimation that the transfer did not include the right to use the bed on which the rails were laid. Held, that the bill of sale, when viewed in the light of the transaction of which it formed a part and of the practical construction given it by the parties, conveyed the right of way of the railroad.</p> <p>3. A written contract for the cutting of pine timber, requiring that it be cut “in a workmanlike manner,” refers to the customary manner of cutting such timber at the place of the contract, and prior conversations as to the method of doing such work elsewhere cannot be considered as forming any part of the agreement evidenced by the writing.</p> <p>3. In determining the meaning of words or terms used in a contract, the custom or usage of the place of the contract governs, whether both pai'ties knew of such custom or not. The place of the contract is the place of its making, unless its terms indicate another place for performance.</p>

F. Bailey, Judge. A will contest. There were three witnesses to the will.

<p>Appeae from a judgment of the circuit court for Winnebago county: Geo. W. Buenell, Circuit Judge.</p> <p>This is an action of trover to recover the value of a stock of hardware. The plaintiff is the assignee under a voluntary assignment made by J. C. Koelsch, for the benefit of his creditors. Roelsch owned the stock of hardware in question, and on the 17th of Eebruary, 1897, executed a voluntary assignment to the plaintiff before Wesley Mott, a court commissioner at Menasha, Wisconsin. Mott did not take the assignment and bond personally to the clerk of the court at Oshkosh, but intrusted them to one J. M. Pleasants, an attorney, who had been the attorney of Koelsch in drawing the papers, to take them to Oshkosh and file, indorsing upon the papers a written request to the clerk to file the same. The papers were placed on file at three minutes past 1 o’clock on the 17th of Eebruary, 1897. On the same day judgment upon a judgment note given by Koelsch to the John Pritzlaff Hardware Company was duly entered, and at 11:20 o’clock in the forenoon the execution thereon was delivered to the defendant Florian, who was then the sheriff of Winnebago county. He immediately proceeded to Koelsch’s store, but did not find Koelsch there, he being engaged in preparing the assignment. He stayed at the store some twenty minutes or more, but did hot exhibit his writ nor state to the clerk that he made any levy, and the business apparently went on as usual. A few minutes before 12 o’clock noon, Koelsch and Toepfer went to the store and found Lampert there. Some conversation took place, but what that conversation was is disputed; Lampert testifying that he told Koelsch that he had an execution and had levied on the stock, but Koelsch testifying that Lampert said he had not yet taken possession. Koelsch and Lampert went to an hotel, and took dinner with the attorney of the judgment creditor, leaving Toepfer at the store, who locked it and took the key. After dinner Lampert found the store locked, and then posted notices on the outside announcing that he had levied on the stock therein, and later in the afternoon broke open the door. Thereafter Lampert proceeded to sell out the stock and apply the proceeds upon his execution. He also made a return upon the execution, in which he stated that he levied upon the stock at 11:20 o’clock a. m.</p> <p>A special verdict was returned by the jury as follows: “ (1) Did the sheriff, by his deputy, Matt Lampert, levy upon and seize the goods in controversy on the 17th of February, 1897, under the execution, before the hour of one o’clock and three minutes in the afternoon ? A. No. (2) At what time were the notices of levy posted on the doors of the two stores ? A. 1:15 p. m. (3) What was the fair market value, at Menasha, Wisconsin, February 17, 1897, of the goods in controversy? A. $1,550.” Upon this verdict judgment was rendered for the plaintiff, and the defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Btjenell, Circuit Judge.</p> <p>Action for personal injuries alleged to have been caused by defendant’s negligence. Plaintiff was a minor, a little less than fifteen years of age. At the time of his injury he was employed to work in defendant’s pulp mill. His duties were “skinning the roll” of pulp on a wet machine. The machine consisted of a series of eight wood and iron rolls besides the cylinder and crusher, between which ran an endless strip of wool felt, and upon which the pulp was collected. When the pulp became of the requisite thickness, it was his duty to remove the same in sheets, which he did by the use of a stick provided for that purpose. It was also his duty to see that the felt ran over the rolls properly, which was done by the adjustment of a guide roll. At times the felt would become wrinkled in places, and it became necessary to straighten it, taking hold and pulling with the hands. On the day of the accident the felt on this machine became somewhat wrinkled, and plaintiff stepped to a point where the felt feeds between the press rolls, and attempted to straighten it. In so doing he allowed the fingers of his left hand to be drawn between the rolls. The third and fourth fingers and a portion of the second were so crushed that they had to be taken off. The negligence complained of was that the plaintiff was inexperienced, and had not been informed as to the danger attending his work; that the felt was worn and unfit for use; that the floor of the mill was slippery and icy; that there was a lack of crosspieces over the felt to prevent the hands from entering the press rolls; and that he was left in charge of the machine night and day, so that he could not secure needed rest. The' defendant denied negligence, and alleged that plaintiff, when injured, was at a place where it was unnecessary and improper for him to be, and that his accident was the result of his own carelessness.</p> <p>A special verdict, with answers found by the jury, is as. follows: ■“ (1) "Was the injury to plaintiff proximately caused by the defendant’s negligence? A. Tes. (2) Was the danger apparent to a person of the age, experience, and understanding of the plaintiff? A. No. (3) Ought the plaintiff, in the exercise of ordinary care and prudence, to have comprehended and appreciated the risk and dangers incident to-taking hold of the felt at the place and in the position where he did ? A. No. (4) Was the want of ordinary care and prudence on the part of the plaintiff the proximate cause of his injury ? A. No. (5) If the court shall be of the opinion that the plaintiff is entitled to recover, at what sum do you assess the plaintiff’s damages? A. $500.00.” .A judgment was entered for plaintiff, from which this appeal is. taken.</p>

<p> Vacating judgment: Rights of surety on appeal bond. </p> <p>A surety upon an appeal bond conditioned for the payment of any judgment finally recovered against bis principal is not entitled, in the absence of fraud or collusion, to have a judgment against his principal vacated and to have permission to defend, where his principal would have no such right.</p>

W. Bttbhell, Circuit Judge. This is an action to set aside and annul a deed from the plaintiff to the defendants William M. Bandell and wife, and also a deed from said Bandell and wife to the defendants Jelleff and WaJcefield, on the ground that said Bandell procured his deed by a fraud upon plaintiff and that his grantees took title with knowledge of such fraud.

<p> Voluntary assignment: Chattel mortgages. </p> <p>3» A conveyance or other arrangement by which an insolvent debtor places part or all of his property under the control of another, whether a creditor or not, in trust for the benefit of one or more of his creditors, with or without preferences, constitutes an assignment for the benefit of creditors and is voidable at the election of any creditor not consenting thereto, unless the statutory requisites for the making of voluntary assignments be complied with.</p> <p>2. Where separate mortgages of the property of an insolvent debtor were given at the same time to several creditors, with an agreement or understanding, evidenced by the writings and by the conduct of the parties, that the first mortgagee should take immediate possession for the benefit of all, convert the property into money, and account therefor to the other mortgagees or their mutual agent, the transaction is held, to have constituted a voluntary assignment. Menzesheimer v. Kennedy, 75 Wis. 411, and Michelstet-ter v. Weiner, 82 Wis. 298, distinguished.</p>

<p> Railroads: Injury at highway crossing: Contributory negligence. </p> <p>1. In all cases where the right of recovery is based upon negligence not wilful nor such that the person injured was deceived or misled by the negligent act complained of, the plaintiff, in order to recover, must himself have exercised care, no matter how cleai-the negligence of the defendant.</p> <p>2. The duty of a person approaching a railway track to look and listen before crossing is absolute, and nonobservance of that duty is negligence per se. So held, in a case where the gates maintained at a. railway crossing were open, and plaintiff, while walking across the tracks, was struck by a train running at an unlawful rate of speed, which he might have seen and heard if he had looked and listened before attempting to cross. Rohde v. C. & N. W. R. Co. 86 Wis. 809, distinguished.</p>

D. Cleveland, Judge. Cyprian Bowker and Abigail, bis wife, conveyed their homestead of ten acres, by warranty deed, to their married daughter, Ella Tice, with no consideration except a written agreement by Ella Tice with said grantors and Ida Bowlcer, their unmarried daughter, in which, in consideration of the conveyance of the described land, she “covenants and agrees to care for and support the said Cyprian Bowker and Abigail Bowker during the term of their lives, and to…

<p>Appeal from a judgment of-the circuit court for "Wauke-sha county: Warham Pares, Circuit Judge.</p> <p>This is an action of ejectment to recover 103A6 acres of land situated in sections 4 and 5 of the town of Delafield and sections 32 and 33 of the town of Merton, in "Waukesha county, Wisconsin. The," defendants claim title under an administratois’ sale, and the plaintiff contends that the evidence shows that the administrator was directly or indirectly interested in such sale, and hence that it was void.</p> <p>Trial by jury was waived, and the action was tried by tbe court. The evidence showed that on the 11th of December, 1870, one Pearson Gibson, of Waukesha county, died intestate, owning the lands in suit, with others in the vicinity, and leaving surviving him his widow, Mary Ann Gibson, and the plaintiff, his son, who was then less than two years old and was the only heir at law. On the 21st of December, 1871* the defendant Ma/rk Gibson, a brother of the deceased, and Mary A. Gibson, the widow, and one Joseph Johnson, were duly appointed administrators of the estate of Pearson Gibson, deceased, and thereafter duly qualified. There were two mortgages which covered the land in question and the other lands of Pearson Gibson at the time of his decease,— one for $1,500 and interest, dated November 27, 1868, to one Matthew Middlewood, and one for $1,000 and interest, dated February 14,1870, to Joel Hastings. A considerable amount of claims was proven against the estate, and allowed, in the county court, but the exact amount of the claims so allowed does not appear in the record. In order to pay said Claims and the above mortgages, it became necessary to sell some of the real estate of the deceased; and on the 18th of March, 1872, upon proceedings duly had, the administrators were licensed to sell the real estate involved in this action, for the purpose of paying said mortgages and debts. After due notice, the land in question was sold April 15, 1872, by the administrators, for $41 per acre, amounting to $4,254.98 in all, to George Gibson, a son of the defendant Mcvrh Gibson. There was some conflict in the testimony as to the value of the lands at the time of the sale, but the court found, upon sufficient testimony, that $41 per acrp was its full value. This sale was confirmed by the county court April 23, 1872, and' the administrators were directed to deed the land to the purchaser. An administrators’ deed was made out, bearing-date April 80, 1872, but was not acknowledged by the administrators until September 2,1872, and was recorded September 19, 1872. October 28, 1872, George H. Gibson, the purchaser, deeded to Mcvrh Gibson, the defendant, the east 45.12 acres of the land in question, for the expressed consideration of §2,035. George Gibson, the purchaser, died in 1893, intestate and unmarried, leaving the defendants, his father and mother, as his only heirs at-law; and his estate was afterwards duly probated, and the lands owned by him assigned to the defendants.</p> <p>The records of the county court in the matter of the estate of Pearson Gibson show that the proceeds of the administrators’ sale were, in form, accounted for by the administrators .and applied to the payment of the debts of the estate, and that upon settlement of the estate a balance of $279.48 was assigned to Louis Gibson, the heir at law, and paid over to his guardian. The records in the. office of the register of deeds further show that on the 4th of June, 1872, Mcvrh Gibson and wife executed a mortgage to Joel Hastings for $1,000 on that part of the northwest quarter of section 4, town of Helafield, lying south of the Milwaukee & St. Paul Eailroad, containing seventy-four acres, and that on the same day Joel Hastings discharged the Pearson Gibson mortgage to him, covering the land in suit. It further appears from said records that on the 2d of September, 1872, George H. Gibson gave a mortgage to Matthew Ivliddlewood for $1,900, covering the land in suit, except the east fifty acres thereof, and that it secured the payment of seven promissory notes for $1,904, executed by Mcvrh Gibson and George H. Gibson, and that upon the same day the mortgage from Pearson Gibson to Matthew Middlewood for $1,580 was released by Middle-wood. It further appears from the records that on the 9th of December, 1872, the mortgage given by Mcvrh Gibson to Hastings June 4, 1872, was released by Hastings, and that upon the same day Mcvrh Gibson deeded other lands owned by him to one Yettelson for $2,500.</p> <p>Practically all of the facts hereinabove stated appear from the records either of the county court or of the office of the register of deeds, and so are not capable of much dispute.</p> <p>The defendant Mcvrk Gibson was put upon the stand as a witness in his own behalf, and testified, as to the transactions under investigation, substantially as follows: That the property in question at the time of the administrator’s sale was sold to George H. Gibson and one Peter Christianson in partnership, but that the bid was made by George alone; that the land was put up for sale upon one day, and the sale adjourned until the next day, and that there were other bidders there, but that George’s bid was the highest; rhat he was not interested in his son’s purchase; that his son was. twenty-eight years old at the time, and had a team of horses and a threshing machine, and that he had made $1,400 threshing with his machine in one season; that George and Christianson worked the property during the season of 1872,. George working the west half and Christianson the east half thereof, and that in the fall of 1872 Christianson found that, he could not raise the money to complete the purchase, and so he (the witness) took it; that the land was paid for in cash and mortgages; _that he received $4,200 from George Gibson in mortgages and other shape; that he (witness) took up the Hastings mortgage by giving a mortgage of his own on the same land; that George paid for that land by turning some money, and some he borrowed, and that Middle-wood mortgage; that he,never turned ahy mortgage over to him (witness), but that he paid money enough to pay for the whole land, with the mortgage; that George paid up the debts and the mortgage, and everything, and then he got it on his part; that he paid him (witness) money on the property, — • paid up and settled to our satisfaction, and got his deed; that the Hastings mortgage was on the whole property, and that he could not think how that was settled; that when Christianson failed to take his part of the land and pay for it, and George could not sell it to any one else, he (George) sold it to him; that no one else would give as much for it, and the administrators did not sell it to him (witness) that he simply took the place of Christianson; that at the time of the sale he (witness) was indebted to his son for labor- and money loaned, and in October he purchased part of the land from his son, because Christianson gave up the purchase and George could not pay for it all.</p> <p>Mary Gibson, a daughter of the defendant, was also sworn as a witness, and testified that her brother George and Chris-tianson worked the land during the summer of 18T2, and that she heard a conversation between them to the effect that Christianson could not take his share of the land, and that her brother George had-run a threshing machine a good many years, and had worked for his father and for other people, and her father owed him for labor, and that he had loaned money to her father during several yearSj and her father was owing him at the time of the sale; There was. other proof on the part of the defendants showing that there were a. number of other bidders present at the time of the-sale, and that the sale was held open two days, and that George’s bid was the best bid received. There was also evidence of one John Christianson substantiating the fact that Peter Christianson was to have a share of the place, under George’s bid, and that he attempted to raise the money to. take his share of the land.</p> <p>The circuit court found generally that the lands were sold for full consideration, and the purchase price was duly applied to the payment of the mortgages and debts of the estate ; that all the proceedings were regular and the sale fairly made; and that neither of the defendants was directly or indirectly interested in the purchase of the lands. And upon these findings the plaintiff’s complaint was dismissed, and the plaintiff appeals.</p>

<p> Public nuisance: Injunction: Who may bring action: Appeal: Under-talking. </p> <p>1. Au action in the circuit court to enjoin the continuance of a public nuisance must be instituted by the proper law officer of the state, and that court has no power to authorize a private relator to act pro hac vice as such officer. State ex rel. Lamb v. Cunningham, 83 Wis. 90, distinguished.</p> <p>2. Such an action, when instituted by a private relator in the name of the state, is not an action brought by the state, and an effective appeal therein cannot be taken by the relator without the giving of an undertaking.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BubNell, Circuit' Judge.</p> <p>They contended, inter alia, that the plaintiff by reason of his age could not, as a matter of law, be held guilty of contributory negligence. Ewen v. G. cb FT. W. E. Go. 38 Wis. 613; Townley v. O., M. cb St. P. B. Go. 53 Wis. 626; Hemmingway v. G., M. cb St. P. B. Go. 12 Wis. 42; Whalen v. G. & Pf. W. B. Go. 15 Wis. 654; Swift v. S. I. B. I1. B. Go. 123 N. Y. 645; Bottoms v. S. cb B. B. Go. 25 L. N. A. 184, and cases in notes; Johnson v. O. cb Pf. W. B. Go. 56 Wis. 214, 219; S. 0. 49 Wis. 529, 531; Peddles v. O. cb Pf. W. B. Go. 14 Wis. 239; MeVoyv. Oal&es, 91 Wis. 214; Gar-mer v. O., St. P., M. cb O. B. Go. 95 Wis. 513; Mowrey v. Central City Ry. 51 N. Y. 666; Byrne v. JY. Y. C. & U. R. JR. Co. 83 N. Y. 620; JDowling v. JY. Y. C. $ JJ. JR. JR. Co. 90 N. Y. 6Y0; Ilepfel v. St. B., JMJ. & M. JR. Co. 49 Minn. 263; Jlenderson v. St. JR. <& D. JR. Co. 52 Minn. 479. Even though the plaintiff had been upon the right of way instead of the street, the defendant’s servants were bound to exercise reasonable care for his safety, and in neglecting to do so were guilty of gross and culpable negligence. Valin v. JMJ. c& JY. JR. Co. 82 Wis. 1; Woodward v. West Side St. JR. Co. 71 Wis. 625; Whalen v. C. c& JY. W. JR. Co. 75 Wis. 654. It is gross negligence to run trains at a rate of speed prohibited by law. It is a question for a jury-whether children were guilty of contributory negligence in running in front of a train. Chicago dk A. R. Co. v. Beeher, 84 Ill. 483; Allen v. A. C. R. Co. 106 Iowa, 602.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county: N. S. GilsoN, Circuit Judge.</p> <p>The complaint was for the recovery of $498 with legal interest from October 19, 1895, alleged to be due from defendant Anton V. Mueller for three altars, a communion rail, and crucifix, said to have been sold him by plaintiff’s assignor, a manufacturing corporation called the St. Francis Art Institute. The St. Mary’s Congregation of Random Lake was joined as defendant, but no cause of action was stated, or evidence produced to establish any cause of action as to it. Defendant Mueller answered, admitting purchase of the articles mentioned in the complaint, but alleging that it was made through Ií. T. Stamper as secretary and business manager of the St. Francis Art Institute, that it was agreed defendant should give therefor five shares of the capital stock of the institute company, and that the articles were delivered pursuant to such agreement and the stock duly tendered 'to plaintiff. There were further allegations showing the tender pleaded to have been kept good down to the time of the trial. The pendency of a former action against the St. Mary’s Congregation was also pleaded in abatement.- On the trial the court ruled that the defense in abatement was insufficient, and due exception was taken to such ruling.</p> <p>The evidence showed that before the action was commenced Mueller transferred the property purchased of plaintiff’s assignor to the St. Mary’s Congregation and thereby disabled himself from returning the same. There was no dispute as to the amount due plaintiff, if anything was due, and no evidence that Stemper possessed any authority, as business manager of the Art Institute, other than that which ordinarily pertains to the position of secretary and business manager of a corporation. There was some evidence tending to show that the agreed consideration for the articles purchased was capital stock in the Art Institute as alleged in the answer.</p> <p>At the close of the evidence plaintiff’s counsel moved the court for the direction of a verdict for $498 with interest. Tiiat motion was denied with the understanding that the question of law presented should be considered later and that in the mean time some questions of fact should be passed upon by the jury. Such questions were thereupon submitted and the jury were instructed in regard to them. The jury, having failed to agree, were discharged, and the court then granted plaintiff’s motion for judgment. Judgment was thereupon entered, from which this appeal was taken.</p> <p>To the point that the corporation was bound by the contract made by its secretary and business manager, they cited 4 Am. & Eng. Ency. of Law, 242, 245; Madison, W. dk M. P. B. Go. v. Watertown da P. P. B. Go. 5 Wis. 1Y3; GlanrTt, v. Fa/rrington, 11 Wis. 306-322; North Hudson M. JB. da L. Asso. v. First Nat. Bcmk, Y9 Wis. 31; Germantown F. M. Ins. Go. v. Hhei/n, 43 .Wis. 420; Winterfield v. Gream Gitnj B. Go. 90 Wis. 239; MeFlroy v. Mvrmesota P. H. Go. 96 Wis. 31Y; Senour Mfg. Go. v. Olcvrlw, 96 Wis. 469; Ford v. Hill, 92 Wis. 188; 2 Kent, Comm. 291.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county: N. S. G-ilsoN, Circuit Judge.</p> <p>The mortgage in suit bears date April 13, 1893, and was executed by Anna Black and Frances Trester to the defendants Henry W., John Jand Adam Trester, to secure the payment of a note for $1,000, due in five years, with interest at six per cent., payable annually. On April 17, 1893, the mortgagees duly assigned said mortgage to Christine "Webster, and on the back of the note signed their names to the following: “Pay to the order of Christine Webster.” On June 9, 1893, this mortgage and note were transferred to plaintiff by assignment and indorsement in proper form. Default having been made thereon, notice of protest and nonpayment was duly given to the indorsers of said note.</p> <p>This suit was commenced to foreclose the mortgage. The indorsers of the note were made parties defendant, and judgment against them for any deficiency was demanded. No appearance was made by any of the defendants, except the mortgagees, who answered, denying that they ever indorsed the note in suit or assured the payment thereof to the plaintiff or any one else, and alleging that if the note bore their signatures the indorsement was made under a mistake of fact and without any intention to guaranty the payment thereof, which fact was well known to the plaintiff, and that he was not a bona fide purchaser thereof.</p> <p>The court made findings in favor of the plaintiff, and directed the entry of the usual judgment of foreclosure and sale, and, in case of a deficiency, that judgment therefor should be entered against the makers and indorsers of the note. From this judgment so entered the defendants Hewry W., John J., and Adam Trester appeal.</p> <p>To the point that the judgment for deficiency against the indorsers was unauthorized because their contract was not the same contract which the mortgage was given to secure, they cited 2 Pingrey, Mortgages, § 203Y; Bishop v. Douglass, 25 Wis. 696; Fond du Lao H. Go. v. JLashms, 51 Wis. 135; Ga/ynor v. Blewett, 86 Wis. 399; Plcmhinton v. LLildebrcmd, 89 Wis. 209; Witter v. Peeves, 78 Wis. 517; Goti/rell v. New London F. Go. 94 Wis. 176; Morgan v. South Milwauhee L. V. Go. 97 Wis. 275; Biehccrds v. Lcmd & Fiver L. Go. 99 Wis. 625.</p> <p>To the point that the parol evidence tending to alter the contract of indorsement was inadmissible, they cited Jones, Ev. §§ 437,438, 508, 509; Martin v. Cole, 104 N. S. 30; Gahe v. Pottsville Banh, 116 Pa. St. 264; S. O. 2 Am. St. Eep. 600; Youngberg v. Nelson, 51 Minn. 172; Qha/rles v. Penis, 42 Wis. 56; Pale v. Gecvr, 38 Conn. 15;’ S. 0. 9 Am. Eep. 353.</p>

<p> Appeal: Findings of fact </p> <p>Findings of the trial court will not be disturbed on appeal unless against the clear preponderance of the evidence.</p>

<p> Insolvency: Receivers: Constitutional law: Trial by jury: Judicial power: Judge at chambers: Evidence. </p> <p>1. Sec. 16945, Stats. 1898, authorizing the appointment of a receiver fox* the nonexempt property of an insolvent debtor without a determination by a jury of the existence of the requisite facts, is not in violation of sec.' 5, art. I, Const., providing that “the right of trial by jury shall remain inviolate,” etc., since that language relates only to the right as it existed when the constitution was adopted.</p> <p>2. Even if sec. 16945, Stats. 1898, is invalid, under sec. 2, art. VII, Const., so far as it attempts to empower a circuit judge at chambers to appoint a receiver of the property of an insolvent debtor, yet it is valid so far as it vests such power in the court.</p> <p>8. Under sec. 16945, Stats. 1898 (providing that upon petition by creditors of an insolvent debtor for the appointment of a receiver, the court shall proceed summarily “to hear the parties and receive such evidence as may be proper, and if it shall appear to the court,r that the debtor is insolvent, etc., the court shall appoint a receiver), it is error to apxxoint a receiver without evidence, even though the debtor does not answer or appear in the proceeding.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: Geo. CleheNtsoN, Circuit Judge.</p> <p>This is an action upon a promissory note, commenced June 25, 1897. There is no bill of exceptions. The action was tried by the court, who made findings of fact as follows :</p> <p>“ (1) That on the 9th day of March, 1896, the defendants executed and delivered to D. V. Bowes their promissory note for $276, payable one year after date, with, interest at seven per cent., at Oobb, "Wisconsin.</p> <p>“ (2) That the payee, D. W. Bowes, shortly after the making of the note, sold it to John Cos, and at the time of the sale indorsed it in blank.</p> <p>“ (3) That on May 12, 1896, Cox left the note thus indorsed with Edward E. Thomas, a merchant of Cobb, for safe-keeping and collection when due.</p> <p>“ (4) That Thomas on the day last named was indebted to the plaintiff, a banker in Dodgeville, on a note and for overdrafts, to the amount of between $1,600 and $1,700, to secure which indebtedness the plaintiff held collateral which Thomas had deposited with him.</p> <p>“ (5) That on May 13, 1896, Thomas arranged with the plaintiff to loan him (Thomas) $1,800 more, and on that day he gave to the plaintiff his (Thomas’s) note for this sum, payable one d'ay after date, the understanding at the time between the two being that the plaintiff should furnish to Thomas money as he might call for it and as he might furnish collateral therefor, to the amount of said note.</p> <p>“(6) That by the 19th day of June, 1896, all of said $1,800 had been advanced by the plaintiff to Thomas upon collateral security, a part of which was said note belonging to Cox, which Thomas had wrongfully appropriated and indorsed with his name in blank before he delivered it to the plaintiff, who received it in good faith.</p> <p>“ (7) That for a time the securities received as collateral for said $1,800 note were kept separate from the securities held by the plaintiff for said prior indebtedness, and, as collections were made upon the securities, the amounts received were applied upon the particular indebtedness for which they were pledged, but about September, 1896, it was agreed between the plaintiff and Thomas that all the collateral securities should be held by the plaintiff as security for all the indebtedness of Thomas to him.</p> <p>■'“(8) That on March 9, 1897, the clay when the said '$275 note given by the defendants, and wrongfully transferred by Thomas to the plaintiff as collateral, became due, the other collateral held by him was ample to pay. all of the indebtedness then owing to the plaintiff by Thomas; and before the commencement of this action enough had been collected, or otherwise realized thereon, to the satisfaction of the plaintiff, to discharge all of Thomas’s indebtedness existing on that day, unless, by reason of the subsequent transaction now to be set forth, the plaintiff might properly ■apply, as he did, a part of what he received on such other collateral to the discharge of a subsequent loan made to Thomas, and hold the note in question as collateral for what would remain due upon said $1,800 note, after applying towards its payment the proceeds of said other collateral, less the part thereof taken to discharge said subsequent indebtedness.</p> <p>“ (9) That forty-one days after said note became due — that is, on April 19,1897 — Thomas borrowed of the plaintiff $280, for which Thomas gave the plaintiff his note. At the time this last loan was made it was agreed between Thomas and the plaintiff that the latter should hold all of the collateral, including the note in suit, for the payment of this $280 note, as well as to secure the payment of the previous indebtedness.</p> <p>“(10) That on April 30, 1897, the defendants went to Thomas at his store in Cobb, supposing that their note, which Oox had, left with him for collection, was in his possession, .and paid to him the amount due thereon, and demanded the note. Thomas told them that he had mislaid it, but would find and hand it to them, and for the present would give them a receipt showing that it was paid. This satisfied them. Whether Thomas paid ©ver to Oox the money the defendants paid him on the note the testimony does not show.</p> <p>“ (11) That the collateral placed in the hands of the plaintiff by Thomas, including said note given by the defendants, proved insufficient to pay the indebtedness of Thomas to the plaintiff, including said note of $280, made April 19, 1897, by $167.55, and it is to recover this sum on their said note that this action is brought against the defendants.</p> <p>“(12) That in May, 1897, Thomas failed in business, and was found to be deeply insolvent.”</p> <p>Upon these facts judgment for the defendants was rendered, and the plaintiff appeals.</p>

Clementson, Circuit Judge. Action on an insurance contract to recover a sum stipulated to be paid to the assured in case of an incurable disability rendering him permanently incapacitated to perform any and all manual labor. Proof of the claim was required to be filed with the assurer sixty days before the maturity of the contract. The complaint stated all facts requisite to a recovery, alleging, as the cause of the disability, paralysis.

B. Wyman, Circuit Judge. On November 26,1895, the defendant Catherine RTewbwrg was, and for a long time prior thereto had been, the owner and in possession of the premises described in the complaint. At that time the land was incumbered by six mortgages. The two junior mortgages — one for $500, and the other for $1,000 — were held by the plaintiff to secure him against liability on certain notes indorsed by him for the defendants.

B. Wymah, Circuit Judge. On December 28,1897, John I. GaUahcm, a physician in La Crosse, filed his petition alleging insolvency and praying a discharge from his debts under ch. 179, R. S. 1878.

<p> Railroads: Negligence causing death: Hypothetical questions: Incurable disease: Damages: Remarks of counsel; General and special verdict: Instructions to jury. </p> <p>1. In an action against a railway company for the death of plaintiff’s intestate, which occurred from diabetes mellitus thirteen days after a collision at a highway crossing, there was evidence that plaintiff suffered from said disease two years before his death; that it was a chronic disease and usually terminated fatally in from four months to six years, depending on age; but that plaintiff for a year and a half prior to the accident was apparently in a normal state of health. Held, that an hypothetical question designed to elicit from witnesses their opinions as to the cause of death, which recited the evidence with reference to the accident but omitted all reference to said disease, was misleading.</p> <p>2. A railway company cannot escape liability for negligence causing death by showing that the person killed was so diseased that his life would necessarily have terminated in a short time in the absence of the accident, but such evidence should be taken into account in assessing the damages.</p> <p>3. In such a case statements of plaintiff’s counsel in his argument to the jury that “We can show you how many hundred men have come near being killed there, if you want us to; ” that “You are called upon to set a price upon a human life; ” that “Barriers are erected and watchmen placed at crossings on account of their danger, and in this case, unless the company can show they blew the whistle and rang the bell,” it was liable; that “I know of a case in this town of a doctor who treated a little boy, who said the boy must die; but no sooner had he pronounced his death sentence than he got better, in defiance of the doctor’s prognostication,” are held erroneous, where not properly excluded from the consideration of the jury by the trial court.</p> <p>4. The submission of a general verdict in connection with a special verdict, and the giving of a lengthy charge to the jury thereon, some portions of which were applicable to the special questions, is erroneous.</p> <p>5. The giving of instructions to the jury applicable to questions submitted for special verdict, in detached fragments, distant from each other, disapproved.</p>

B. Wyman, Circuit Judge. , This is an action for unlawful ejection from a railway train. The evidence showed that the plaintiff boarded the defendant’s passenger, train at the station of Trempealeau, Sunday evening, June 20,1897, intending to ride to La Crosse.

-Appeal from a judgment of the circuit court for La Crosse ■county: O. B. Wyman, Circuit Judge. On the 28th day of July, 1888, and for some time thereafter, George W. Briee was the register of deeds for La Crosse county, Wisconsin,, and his codefendants were the sureties on his official bond.

<p>Appeal from a judgment of the circuit court for La Crosse county: O. B. 'Wyman, Circuit Judge.</p> <p>Proceeding by garnishment. Tbe firm of Scherrer, Teiml & Co., wholesale liquor dealers, was organized in 1893. Teiml died in 1897, and thereafter business was conducted under the old firm name. All the capital was furnished by J. M. Scherrer. In 1896 he was appointed guardian of certain minor children, and as such received $2,000 insurance money belonging to his wards. This money was used in the firm’s business. In April, 1898, he resigned, and there was found due his wards about $1,100. On April 28,1898, the firm executed a note and chattel mortgage to the garnishee Salome Teiml for $1,855. The mortgage covered their entire stock and fixtures. The money was borrowed to pay the amount due from Scherrer as guardian. On the same day they also sold their book accounts to Mrs. Teiml for $1,000. Mrs. Teiml borrowed that sum from the garnishee H. P-Magill, who took an assignment of the chattel mortgage of the firm as collateral security for the loan. Immediately after the execution of the chattel mortgage Mrs. TeimVs agent took possession of the mortgaged property, and was in possession when the garnishee summons was served. Both garnishees answered, setting up the chattel mortgage and claiming to hold the property thereunder. Notice of election to take issue upon such answers was duly served, and the case was tried by the court. The court found the allegations of the answers to be true, and entered judgment in favor of the garnishees, from which this appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p> <p>The plaintiffs sue to foreclose a subcontractor’s lien upon premises of the defendant Browne for material claimed to have been furnished the principal contractor, Rasmussen, under the following circumstances: Prior to August 6,1894, the plaintiff Shearer and one George Eox were copartners in the lumber business, under the name of Shearer & Eox. On that date Eox died, and Shearer continued to conduct the business, using the firm name therefor. Shortly after-wards he was appointed administrator of the estate of Fox. The material in question was furnished between November 3, 1894, and January 9, 1895. A notice of subcontractor’s' lien was given in February, and on July 5th claim for lien was filed. On August 5, 1895, Shearer, as administrator, sold the interest of Fox in the partnership business and assets at auction to the widow, Grace Fox, who immediately thereupon transferred to the plaintiff John F. Jcvrdme the interest so purchased by her, and thereupon a new firm was organized, consisting of the plaintiffs, to which each contributed as capital his interest in the said assets, both chattels and choses in action, of the old firm. All of these transfers and transactions were verbal merely. Suit was •commenced September 21, 1895.</p>

<p>Appeal from a judgment of the circuit court for Waupaca county: Chas. M. Webb, Circuit Judge.</p>

<p> Chattel mortgages: Conditional delivery: Parol evidence: Fire insurance. </p> <p>I. Parol evidence is admissible to show that a written contract, not nnder seal, of which there has been manual tradition, was not to become binding until the happening of some event or ascertainment of some fact, but not that the contract was to be presently binding and to become void on the happening of some event.</p> <p>In an action on an insurance policy which the insurer claimed had been rendered void by the giving of a chattel mortgage on the property insured, the mortgagee’s attorney testified that he asked the insured for a mortgage until he received notice of the entry of a judgment against her; and the insured testified that the attorney “ asked if I was willing to have this mortgage executed for a few days, until the judgment was entered, when it should be null and void, and I told him I was.” The mortgage was at once filed, but the note which it secured was never returned, although it was ascertained after a day or two that the judgment had been entered before the mortgage was given. Held, that the evidence would not sustain a finding that the mortgage was not to go into effect if the judgment had already been entered.-</p>

<p> Divorce: Alimony: Allowance in gross. </p> <p>1. Under sec. 2364, Stats. 1898 (providing that in actions for divorce the court may adjudge to the wife such alimony out of the estate of the husband, for her support and maintenance, as it shall deem just and reasonable, having always due regard to the situation of the parties and all the circumstances of the case), the court is not limited to making an allowance payable at stated periods, but may allow a sum of money payable in gross.</p> <p>2. In an action for divorce brought by the wife it appeared, among other things, that the parties were about sixty years of age, had been married twenty years, and occupied a high social position; that defendant had property worth $80,000, and received a large income therefrom as well as from his professional business; and that the plaintiff was without fault except such as the defendant was in duty bound to condone. Held, that an allowance to the plaintiff of $7,000 payable in gross, together with a monthly allowance equal to about one seventh of the defendant’s income, was not excessive.</p>

0. SilyeethoeN, Judge. The defendant The Wisconsin Telephone Oompcmy is a corporation organized under the laws of this state, and is authorized by its charter to build telephone lines and to conduct a telephone business in this state. It maintains seventy-five different telephone exchanges in the cities and towns of Wisconsin, with wires strung on poles connecting said exchanges with each other and with exchanges-in other states.

<p>Appeal' from a judgment of the circuit court for Dunn county: E. W. Helms, Circuit Judge.</p>

<p> Railroads: Personal injuries: Evidence: Court and jury. </p> <p>In an action against a railroad company to recover for injuries sustained by an employee whose foot had been run over- while he was attempting to seal the end door of a car attached to the tender plaintiff's testimony that his foot was caught between the main rail and a guard rail and injured by the wheel of the tender is held insufficient to sustain a finding by the jury to that effect, where such testimony showed that it was not based upon recollection, but was the result of inference, and the appearance of the shoe worn upon the injured foot and plaintiff’s position after the accident were consistent only with the theory that his foot was caught between the main rail and the wheel.</p>

<p> Court and jury; Nonsuit; Direction of verdict.' </p> <p>1, The rule that disputed questions of fact on evidence are to be answered by the jury applies only where the evidence is such that there is room for different reasonable' inferences therefrom. If the truth of propositions of fact upon which the right of recovery depends be not within the range of reasonable probabilities, no question in regard to them need be sent to a jury though there is evi- • deuce as to their truth.</p> <p>2. To entitle plaintiff to have his alleged cause of action submitted to a jury for decision, he must produce evidence from which sénsible men of unbiased minds can reasonably decide the issues in his favor.</p> <p>3. The rule that, in determining whether a nonsuit should be granted or a verdict directed, the evidence of plaintiff only should be considered, contemplates the consideration of such evidence in the light of matters of common knowledge and facts established beyond reasonable controversy in the case, whether by evidence of plaintiff or defendant or both.</p> <p>4 If the evidence of plaintiff, taking the most favorable view of it in his behalf that it will reasonably bear, including all reasonable inferences therefrom, and assuming that it establishes all that it tends to establish when viewed in the light of conceded or undisputed facts, will not support a verdict in his favor, the verdict, on request being made therefor, should be directed against him.</p> <p>[Syllabus by Maeshall, J.]</p>

<p>Appeal from a judgment of the circuit court for St. Croix county: E. V. Helms, Circuit Judge.</p> <p>Plaintiff sold defendant a car load of lumber, amounting to §238.36, on sixty days’ -time. Soon after the account became due, defendant sent plaintiff a note of one Gf. A. Dols for $209.86, and a draft to balance the account. The note was held by plaintiff until it became due, but the maker failed to pay it. Thereupon plaintiff returned the note and brought suit for the balance due. Defendant answered, setting up the delivery and acceptance of the note in full payment of the account. The case was tried by the court without a jury. The court found the facts as stated, and that the note was not taken by plaintiff, or accepted by it, as payment of the balance due upon the account, and that plaintiff was not guilty of laches in presenting the note for payment, or in notifying defendant of the maker’s default. Judgment was ordered for plaintiff for the balance due, with interest, which judgment the defendant seeks to review on this appeal.</p>

Gr. Siebecker, Circuit Judge. Action by an administrator, whose decedent died in 1894, to set aside a deed of real estate, made in 1875, on the ground that the same was made without consideration and with intent to defraud creditors. Judgment was rendered for the defendant, and the plaintiff appealed.

<p> Agency: Conversion: Settlement: Fraud: Rescission in part: Restoration of-party to former situation. </p> <p>1. An agent, employed to sell goods on commission for a stated period, at the end thereof pretended to exhibit and account for all unsold goods, thereby showing a considerable shortage in his accounts, representing, apparently, property sold and the proceeds converted by such agent to his own use, and then gave a note and mortgage to his principal for a part of such shortage. The principal thereafter discovered other unsold goods in the possession or under the control of the agent, of less value than the balance of the shortage in excess of the note and mortgage, and subsequently enforced such mortgage, but did no other act in ratification of the settlement. Held, that the principal might rescind the settlement as to the goods discovered after it was made, and reclaim such goods.</p> <p>2. If a person purchase or obtain goods of another by fraud, paying a part of the agreed consideration therefor, and thereafter part with a portion of such goods to a bona fide purchaser, such other, upon discovering the fraud, may affirm the transaction in toto as to the property beyond his reach, and rescind it in toto as to all goods in the hands of his vendee not subject to the bona fide claim of any one else, and reclaim such goods without returning or offering to return what was by him received upon the transaction if it was not sufficient to more than pay for the goods not so reclaimed. The doctrine that in order to avoid a sale of property induced by fraud it is requisite that the defrauding party be completely restored to his former situation, and that any act of the defrauded party after discovering the fraud, recognizing the validity of the transaction, constitutes an irrevocable election to ratify it, is not without exception, notably, that when the transaction is separable, without injustice to the wrongdoer, in accordance with the situation of the property as regards being part subject to reclamation by the vendor by reason of being under his control, and the other not, by reason of its having been transferred to innocent third parties, the election will be construed as affecting the latter part only if that can reasonably be done, as where the act recognizing the validity of the transaction merely consists in retaining payment or enforcing payment for goods sold to innocent third parties.</p> <p>[Syllabus by MARSHALL, J.]</p>

<p> Criminal law: Assault with intent to commit rape: Evidence. </p> <p>In a prosecution of a father for an assault with intent to commit rape 'upon his daughter, the fact that there was no evidence of injury to the person of the prosecutrix, no outcry when help was at hand, and no complaint until long afterwards, taken in connection with her threats against her father, her ill feeling against him as manifested on the trial, and the evident desire of the whole family to get rid of him, is held to throw such doubt upon her story that a conviction based upon her uncorroborated evidence will not be sustained.</p>

<p> Domicile: Change: Evidence: Probate of will: Jurisdiction: Conflict of laws: Effect of judgment in another state: Legitimacy of children: Marriage and divorce: Statutes: Extra-territorial effect. </p> <p>1. In a proceeding to probate a will the evidence (stated in the opinion) is held to sustain a finding that the testator, formerly a resident of Louisiana, was at the time of his death a resident of and domiciled in this state.</p> <p>2. In order to effect a change of domicile from one state to another it is only essential that there should be a removal accompanied by an intention to make the new abode a permanent residence or home; and the fact that there was an intention to return to the former domicile at some future indefinite time would not prevent the change from taking effect.</p> <p>3. An order or judgment of a Louisiana court appointing an administrator of the estate or succession of a deceased person, though based on a petition alleging that the deceased died while a resident of that state and that he left property within the jurisdiction of the court, is not conclusive as to the domicile of the deceased and does not, under sec. 1, art. IV, Const, of U. S. (requiring full faith and credit to be given in each state to the judicial proceedings of every other state), preclude a Wisconsin court from taking jurisdiction of a pro-oeeding to probate a will of the deceased and administering so much of his estate as was actually located in 'Wisconsin.</p> <p>4. So far as the judgment of the Wisconsin court, in such a case, attempted to legitimatize adult children of the testator residing in another state, it was extra-judicial and inoperative.</p> <p>5. In a proceeding to probate the will of a testator who, at the time of his death, was a resident of and domiciled in Wisconsin, it is immaterial whether his children to whom the estate is left are legitimate or illegitimate.</p> <p>6. The statutes of another state, prohibiting a person who has been divorced for adultery from remarrying, have no extra-territorial force, and cannot prevent him from lawfully remarrying in this state.</p>

G. Siebeokeb,-Circuit Judge. This is an action to recover for the killing of two cows and the serious injury of a third cow owned by the plaintiff, which were run over by an engine and train on the defendant’s railway. It was alleged that the cows came onto the defendant’s track through a farm gate in the right of way fence, which was negligently left open by the defendant.

G. Siebeckee, Circuit Judge. Action to reform a mortgage of real estate.